Reverse False Claims: Fera Broadens Overpayment Liability

By Author: Jaun Paul
Total Articles: 53
Comment this article

With the Fraud Enforcement and Recovery Act (FERA) becoming law in May this year, Congress amended the False Claims Act (FCA) to cover situations when providers knowingly retain Medicare or Medicaid overpayments.


Before FERA, the feds would only come after you for reverse false claims if you made use of a false statement or some other affirmative action to hide the overpayment. However, under FERA, now you can be liable if you stay clear of an obligation to return money to the government. Retaining an overpayment knowingly becomes a false claim.


One area of concern for providers in this is that Congress does not define knowingly and improperly in FERA. Markette questions, If you and the government are not in unison about whether you have an overpayment, when does that become a false claim?


At this juncture, it's safe to say Congress intended reverse false claims liability to be much ...
... broader than in the original statute. Calling this disconcerting, he said, We are most likely not going to find out how reverse false claims liability works until some qui tams move through the system.


Qui Tam actions - Law suits brought by third parties (relators) who turn the case over the feds for prosecution - will be easier to bring under FERA as well. This is owing to the fact that FERA provides for new remedies for whistleblowers, who are usually the relators in these cases.


Now, contractors and their agents are treated just like employees for the purposes of whistleblower protection. Meaning, if a provider becomes aware that a subcontractor has become a whistleblower, you cannot cut off the relationship with that subcontractor by ending your contract with it. At present there is a broader category of individuals who are protected; this means there's a broader category of people who could bring qui tam suits.

We provide the latest news of reverse False Claims Act in health care and offers advanced Learning Opportunities about FERA broadens overpayment liability for healthcare executives.