Each element of the rules has a specific portion to pay close attention to.
42 CFR Subpart C lays out the rules for “Suspension of Payment, Recovery of Overpayments, and Repayment of Scholarship and Loans” – but I have no idea why “scholarships and loans” are included in the same federal regulation governing suspension of Medicare payments and recovery of alleged overpayments.
According to the first regulation in this subchapter, the scope of the subchapter is setting forth the policies and procedures for handling incorrect payments and recovery of overpayments.
The next portion states that a provider must be deemed to be without fault. “Must” is the important word. This is where the “provider without fault” defense comes from. The “provider without fault” is one of three primary legal defenses, when it comes to Medicare mis-billings. The regulation is 42 CFR 405.350.
42 CFR 405.351 is the third regulation, and it states that “where an incorrect payment has been made to a provider of services or other person, the individual is liable only to the extent that he has benefited from such payment.”
“Benefited” is the key word here. If you are subject to an extrapolated alleged overpayment for $1 million, but only were reimbursed for $700,000, this is an argument to throw out the extrapolation. It’s a new and persuasive argument. You do not even have to hire an extrapolation statistician expert in order to make this argument (although I do not recommend not hiring an expert statistician to rebut an extrapolation. I’m just saying that this is another argument against extrapolation. When it comes to extrapolation, you throw spaghetti at the wall and see what sticks.)
Continuing our exploration of federal regulations, 42 CFR 405.352 allows the government to withhold your Medicare reimbursements to offset any alleged overpayment. It puts the cart before the horse, so to speak.
In other news, I am talking about extrapolation this week at the American Society of Medical Association Counsel (ASMAC) conference in Hawaii. It’s basically an association for general counsels of healthcare providers. The Association President asked me to present with him, and I thought, “that’s a good reason to go to Hawaii” – so I said yes. I am leaving tomorrow.
