Medicare overpayments can raise fraud concerns

It should come as no surprise that you can wind up in hot water with federal fraud investigators even if you’ve done nothing deliberately wrong. Yet there are things you can do to guard yourself and your practice against unwanted attention when you discover the Medicare reimbursement you filed for was too high and the claim has already been paid.

By law, physicians face criminal charges if they receive a Medicare payment they know they are not entitled to and don’t return it. Yet, while carriers are usually receptive to repayment, there is no guarantee that a full-blown audit — or worst yet, a fraud and abuse investigation — won’t be launched as a result of this voluntary effort to do the right thing, points out nationally known health care lawyer Alice Gosfield, JD, president of Alice Gosfield & Associates in Philadelphia.

The Office of Inspector General (OIG) has a Voluntary Disclosure Program office to which these kinds of inappropriate payments are supposed to be reported. However, the program offers no assurance that providers who step forward won’t be prosecuted. As a result, even the OIG admits the program has been a bust.

Instead of reporting overpayments they discover to the government, physicians have been making deals with Medicare carriers and fiscal intermediaries to refund the overpayments on the condition they do not report the overpayment to the government, says OIG spokesman Lewis Morris.

In response, OIG officials say they still plan to revamp the voluntary disclosure program in an effort to make it easier and more comfortable for physicians to step forward. Even so, Gosfield advises talking to a lawyer before voluntarily coming forward to return any overpayments you might have received.

For overpayments that result from simple, occasional errors, it is appropriate to just return the check and note the mistake, she says. However, if the overpayment is not an isolated incident, a more organized approach to dealing with the matter may be needed.

Gosfield says physicians should make all of the activities listed below a regular part of their offices’ practices to help prevent and deal with possible reimbursement problems:

1. Identify questionable office procedures that might expose the practice to investigation.

2. Develop a compliance plan that minimizes problems and helps solve those that do arise immediately.

3. Educate both physicians and office staff responsible for billing about the latest reimbursement policies.

4. Develop accurate documentation aids, such as forms to be completed or lists of required elements for a visit. Monitor documentation compared with claims submissions on an ongoing basis as part of an early warning system.

5. Make sure physicians are aware of the latest billing changes from third-party payers.

6. Examine contracts with billing companies to ensure that the company stays informed about developing rules and notifies its clients about changes.

Finally, Gosfield advises whenever you come across a possible fraud and abuse problem, discuss it with your lawyer before doing anything. The two of you can jointly determine if it would be better to investigate the situation under the shield of attorney-client privilege.