Overpayments: Follow protocol

A. Typically, suppliers report and return overpayments to the DME MAC of jurisdiction. Each DME MAC has a standard overpayment refund form. The supplier simply provides information and submits a refund check. Suppliers must indicate a reason for the overpayment. A few of the available reasons are: billed in error, insufficient documentation, services not rendered and medical necessity. The refund is a dollar-for-dollar payment. No penalty is assessed.  

On the other hand, in cases that involve overpayments due to potential violations of the Stark Law or the Anti-Kickback Statute, suppliers should carefully consider self-disclosure to the OIG or CMS. The OIG's Self-Disclosure Protocol is available to suppliers that have determined that they violated the AKS. However, the SDP is not available for disclosures that only involve potential violations of the Stark Law. Those must be disclosed using Self-Referral Disclosure Protocol.

Once a supplier is accepted into the SDP or SRDP, the process will not conclude until a settlement is reached and payment made. One potential benefit is that successful resolution may not include the implementation of a costly corporate integrity agreement. Damages are calculated based on a multiple of the amount of remuneration paid by the provider/supplier under the improper arrangement rather than the amount of reimbursement paid by a government program to the provider/supplier. In many instances, the remuneration paid is lower than the reimbursement received.

A full investigation conducted by in-house or outside legal counsel is important to ensure that the investigation is privileged and the correct protocol is followed. hme

Josh Skora is an attorney with Brown & Fortunato. Reach him at jskora@bf-law.com.