2023 Board Resources

has been “identified” de facto . 98 According to CMS “reasonable diligence” includes both (x) proactive compliance activities to detect overpayments and (y) investigations in response to “credible information” related to overpayments. 99 (c) Credible Information and Duty to Investigate . As mentioned in 8.1(b) above, reasonable diligence includes the duty to investigate any “credible information” that a person receives in relation to overpayments. CMS defines credible information as “information that supports a reasonable belief that an overpayment may have been received.” 100 CMS provides the following examples of credible information that would trigger this duty to investigate, though it is by no means exhaustive: 101 (i) Incorrect coding that resulted in increased reimbursement; (ii) A patient death occurred prior to the service date on a claim submitted; (iii) Services were provided by an unlicensed or excluded individual; (iv) Internal audits that indicate overpayment; (v) Notification by a government agency of an audit that discovered overpayment; or (vi) A significant increase in Medicare revenue for no apparent reason. (d) The 60-day clock does not start until after reasonable diligence has concluded, which may take “at most 6 months from receipt of the credible information, except in extraordinary circumstances.” 102 6.2 Penalties . Failure to report and refund overpayments under this rule may result in liability under the FCA and the CMPL, as well as exclusion from federal health care programs. 103 ARTICLE 7 SUSPENSION AND REVOCATION 7.1 Suspension . 104 Medicare payments to providers and suppliers may be suspended, in whole or in part, by CMS or a Medicare contractor (MAC), where: (i) There is reliable information that an overpayment exists or that the payments to be made may not be correct or

98 Id at 7683. 99 Id at 7661. 100 Id at 7662. 101 Id at 7659. 102 Id at 7662. 103 Id at 7654.

104 See 42 C.F.R. § 405.371; see also HHS, CMS, Medicare, Medicaid, and Children’s Health Insurance Programs; Additional Screening Requirements, Application Fees, Temporary Enrollment Moratoria, Payment Suspensions and Compliance Plans for Providers and Suppliers , 76 Fed. Reg. 5862 (Feb. 2, 2011).