HCFA plans to tighten 'without-fault' regs
HCFA plans to tighten 'without-fault' regs
A new proposed rule from the Health Care Financing Administration will limit the ability of some health care providers to claim "without-fault" status for receiving overpayments from Medicare. The rule is designed to boost the amount of money HCFA collects from hospitals, physician groups, and home health providers, agency officials claim. It also would plug loopholes that have allowed providers to pass their liabilities on to Medicare patients.
Published in the March 25 Federal Register, the rule is also noteworthy because it sets regulations separate from the Social Security Act, which historically has governed the issue of Medicare overpayments.
Under the new regulation:
s HCFA will consider it "inequitable" to recover money from a without-fault beneficiary when the overpayment is made to that beneficiary's without-fault provider;
s HCFA will enable Medicare's fiscal intermediaries and carriers to determine without-fault status in Medicare overpayments resulting from Medicare secondary payer conditional payments;
s the agency will grant peer review organizations the authority to make without-fault determinations;
s an administrative appeals process will be established for providers and suppliers (Part A and Part B entities) with regard to a not-without-fault determination.
"In the past, HCFA was not able to recover overpayments because providers and suppliers could claim without fault status," a HCFA official says. "The law protected them, and HCFA was out of luck. The new rule tightens up the without-fault criteria to enable HCFA to recover more overpayments."
The new rule is most likely to affect home health agencies, because historically, they've been more likely to attempt to claim a waiver of liability for Medicare overpayments, says Barbara E. Straub, JD, a principal at the law firm of Powers, Pyles, Sutter & Verville in Washington, DC. "A lot of times, these questions revolve around medical necessity," she says. "And in a hospital setting, it's more clear cut whether you need care or not. That's where a lot of these issues come up."
M. Lynne Northcutt-Greager, president of HCP Consultants in Englewood, CO, and a member of the Medical Group Management Association's Management Consulting Services, says the proposed rule could affect any provider who hasn't been diligent in its billing and monitoring of services reimbursed for under Medicare.
Providers with good billing practices in place should have little trouble with the new rule, Northcutt-Greager says. But for those with a history of billing problems, she recommends the following:
"They need to pay attention to what should be getting paid by Medicare and how much, and whether they're gathering the appropriate information regarding insurance on all of their patients," she says. "They should also make sure that their billing accurately reflects what they're doing. Then, when they get the payments, they should make sure they're not just posting them and not paying attention. They need to watch what's coming in and make sure it's appropriate."
Under the current regulations, HCFA determines whether providers are at fault for receiving Medicare overpayments based on the following three elements:
1. whether the overpayment resulted from an incorrect statement made by the beneficiary that he or she knew or should have known to be incorrect;
2. whether the overpayment resulted from the individual's failure to furnish information that he or she knew or should have known to be material;
3. whether the overpayment resulted from acceptance of a payment that he or she either knew or could have been expected to know was incorrect.
Under the new provisions, however, providers are considered at fault unless they "exercise reasonable care in billing for and accepting Medicare payments" and either:
s did not know, or could not have reasonably have been expected to know, that Medicare payment exceeded amounts payable under the Medicare statute and regulations and therefore accepted payment based on a reasonable assumption that the payment was correct;
s did not know, or could not reasonably have been expected to know, that Medicare payment exceeded amounts payable under the Medicare statute and regulations but questioned the appropriate intermediary in writing withing 60 days of receipt of an excess payment.
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