HCFA acts to remove 'I didn't know' defense

Agency aims to collect more overpayments

While the Office of Inspector General reviews the Bethesda, MD-based International Billing Association's proposed compliance standard regarding billing, the Health Care Financing Administration already has proposed new regulations designed to counteract what HCFA views as a "finders keepers" attitude among some physicians who feel justified in not returning Medicare overpayments.

The proposed rule, printed in the March 25 Federal Register, basically turns the tables 180 degrees, answering the "I didn't know" provider defense with a "you should have known" reply.

Currently, there are no formal HCFA rules for determining when a provider is culpable for not returning overpayments. The most authoritative source on the subject is the "without fault" instructions contained in the Medicare Carrier's Manual.

Under present manual guidelines, a provider is considered without fault for overbilling and not returning the overpayment if the provider exercised "reasonable care" by disclosing "all material facts" when preparing the original claim and "reasonably assumed" the payment was correct.

However, under HCFA's proposed changes, the baseline for taking reasonable care is raised, to say the physician should have "known or could have been expected to know" what the correct amount to bill and be paid was.

In short, claiming you made a mistake by billing the wrong amount and keeping the overpayment is not good enough, because you "should have known" the correct price based on your previous experience with Medicare payment for "similar or reasonably comparable items of service," according to HCFA.