U.S. Remains Aggressive on Fraud, Waste & Abuse
Roy Franco
February 27, 2014

Yesterday, the Health & Human Services Department (HH&S) issued a press release announcing a record-breaking $4.3 billion dollars in recoveries for calendar year 2013 related to Fraud, Waste & Abuse of its Medicare program.  This announcement is even more impressive as the Department can demonstrate the success of its recovery efforts based on its cost.  In an age of expected government overruns and inefficiencies, the Health & Human Services breaks this stereotype since for every $1 it spends on recovery efforts last year, $8.10 was returned back to the Fed.  More than likely, such success will get the attention of a Congress looking to reduce the deficit, and be extremely persuasive when the Department requests additional resources during the appropriations process.  It may even cause additional pilot programs to be expanded, or made permanent to guaranty continued returns. 

An area for concern by those involved with Medicare Secondary Payer, is whether or not HH&S, through the U.S. Justice Department or its own Agency, the Office of Inspector General (OIG)begin recovery inquiry on Section 111 of the Medicare & Medicaid SCHIP Extension Act of 2007.  We are well aware that this reporting law contains a reporting penalty which was tamed a bit last year when the Strengthening Medicare & Repaying Taxpayer’s Act of 2012 (SMART) was passed.  We also know that the OIG, for the past two yearshas added this to its work plan, but yet to see any material provisions or process developed by the Agency.  Recently, the Centers for Medicare & Medicaid Services (CMS) issued an ANPRM (Advanced Notice for Proposed Rule-Making) for safe harbors which closed for public comments earlier this month.  This is typically a signal that the process has begun, but no one can predict the timeline.  Nevertheless, HH&S is receiving attention for its recovery efforts, and like anything else, once something is measured, people expect the bar to be raised.  MSP issues for Non-Group Health Plans would be an area ripe for raising the bar, and it is important such plans review their MMSEA data for accuracy and completeness to mitigate penalties.
Penalties are not the only concern for NGHP involved in MSP.  We blogged a couple of months back about a settlement with a hospital by the U.S. Department of Justice using the False Claims Act.  Most recoveries under the False Claims Act come from providers of benefits to Medicare, but this settlement represents a subtle shift in the focus of the False Act claim.  That case involved the hospital not telling Medicare it had received reimbursement for its services as a result of settlements by NGHP’s in workers’ compensation and liability cases.  The hospital failed to credit Medicare for these recoveries and essentially received a windfall.  The situation was uncovered by a whistleblower and prosecuted under the False Claims Act.   It is not difficult to imagine how such scenarios could play out in situations outside of a provider where there is an obligation to inform or otherwise reimburse Medicare.   Consequently, we always recommend to our clients an ongoing review of protocols to make certain MSP compliance is maintained with written documentation and training of staff.
We anticipate continued interest by HH&S and Department of Justice in reimbursements for Fraud, Waste & Abuse.  We will continue to monitor these Departments for announcements on this front, and share them with you as they occur.  Please feel free to contact us at any time for any of your MSP compliance needs.