On February 16th, 2012 CMS posted on the Federal Registry a proposed rule that would extend the period they have to review any possible overpayments to 10 years. This new rule would implement a provision of the Affordable Care Act that is focused on identifying fraudulent activity. The current period is usually about 4 years. Extending it another 6 years could equate to huge trouble for providers.
FRAUD VS. BILLING ERROR
This new proposed rule is an attempt to enforce the False Claims Act. However, when looking back 10 years, practice management technology has changed drastically when compared to systems used widely today. Billing errors due to lack of “smart” PMs would have been a common occurrence, therefore, is it fair to go back 10 years when resources such as claims edit and claims scrubbing software were not so easily accessible to providers and their practices? Many of the claims found to be fraudulent under this new proposed rule could simply have been honest billing errors vs. an attempt to defraud CMS.
RECORD KEEPING
With this new rule, providers will be given a deadline to report and refund any overpayments which they themselves have identified. Ignoring this deadline will result in a large fine placed upon the provider. This now brings up another issue. Under Florida Law, providers need to keep a patient’s medical record for at least 5 years, but that’s it. There are some that will have these records for longer, however, when the law dictates that these should be keep for at least 5 years, how fair is this proposed rule going to be, when it’s asking for overpayments to be refunded on claims which are up to 10 years old? Additionally, with providers changing PMs frequently, it’s going to be very rare to find a practice that has had the same PM for 10 years straight.
The False Claims Act is supposed to be used to identify fraud not billing errors. With this new proposed rule, the chips are all stacked against the providers. They will not have the chance to dispute any of these supposed overpayments because most of the information is no longer accessible to them. If it passes it will be a financial disaster on small to medium sized practices whose biggest payor is Medicare. These practices will not have the financial means to be proactive in ensuring that these overpayments are disputed in time to avoid a financial penalty.
