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LEGAL UPDATE
EXPANDING REACH
False Claims Act Picking Up Steam
O
ver the past 3 years, 2 signifi-
or deliberate ignorance of the over-
cant amendments to the
payment is enough to support
U.S. False Claims
FCA charges.
• The Affordable Care Act of
Act have greatly
2010. The healthcare reform law
expanded its reach, particularly in the context of health care.
• The Fraud Enforcement and
sets a 60-day deadline for reporting and
returning overpayments. The clock starts
Recovery Act of 2009. This act expanded when a provider "identifies" an overpayliability for "reverse false claims."
ment, and failure to return overpayments
Previously, reverse false claims meant
on time violates the FCA. CMS's pro-
false statements made to avoid paying
posed regulations on the 60-day repay-
money owed to the government. The
ment rule (which, for now, apply only to
new amendment doesn't require the
Medicare Part A and Part B providers),
defendant to have made false state-
state that an individual "identifies" over-
ments. So, for example, a provider who
payment if he has actual knowledge of it,
fails to return an overpayment to
or recklessly disregards or deliberately
Medicare could be found liable without
ignores it.
making any false statements at all.
These regulations, however, leave a lot
What's more, a provider doesn't actually
of questions unanswered. Does the 60-
have to know about the overpayment to
day clock start when a provider first sus-
be held liable for it. Reckless disregard
pects there may be an overpayment, or
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O U T PAT I E N T S U R G E R Y M A G A Z I N E O N L I N E | O C T O B E R 2012
