This transcript is auto generated
00;00;00;00 - 00;00;26;10
Bryan Nowicki
Hello and welcome to Hospice Insights: The Law and Beyond, where we connect you to what matters in the ever changing world of hospice and palliative care. The New 60-Day Repayment Rule. What's New? What's the Same? What Does it Mean? Hey, Andrew. How you doing? Welcome to our Hospice team podcast.
00;00;26;13 - 00;00;29;15
Andrew Brenton
Hey, Bryan. Great to be here. Thank you so much.
00;00;29;17 - 00;00;48;13
Bryan Nowicki
Yeah. Always nice to have you. You're that you're kind of our go to guy for a lot of investigations, regulatory work. You're doing, you know, compliance stuff with those PPOs and suspensions that are everywhere. You're you're the what do they call it in baseball? The utility man, you do everything.
00;00;48;13 - 00;00;50;12
Andrew Brenton
Jack of all trades.
00;00;50;13 - 00;01;11;21
Bryan Nowicki
Yeah. And I always enjoy hearing from you because you just you have a a real depth of thinking about these issues that I find very interesting and how you review these items, how you come up with real practical ways to, to turn that knowledge into something hospices and our clients could make use of. So I've been looking forward to this.
00;01;11;24 - 00;01;16;11
Andrew Brenton
I think that's very kind of you. Thank you. Bryan. Yeah, this is an exciting conversation.
00;01;16;13 - 00;01;48;06
Bryan Nowicki
Yes. And it relates to something that you can you can do a deep dive into this area of internal investigations and the 60 day repayment rule, and you can get into a lot of legal because it implicates the False Claims Act and legal terms like reckless disregard. What dos the word knowingly mean? I mean, it kind of cries out for, you know, and attorneys playground of language and all that.
00;01;48;08 - 00;02;12;24
Bryan Nowicki
But but hospices have to deal with, issues like overpayments. And what are their obligations when they identify an overpayment. And it's not practical for them to always run out to an attorney. I mean, it's advisable, I think, to touch base and get some insight. But but, you know, we're all about letting hospices do the work that they do.
00;02;12;24 - 00;02;35;16
Bryan Nowicki
Well. And that includes a lot of times compliance issues. So so let's talk about the 60 day repayment rule. It's been around for a while. But there's been a change that Andrew I think you wanted to highlight. Why don't you kind of take us through what was the old and what is the new, in a way that, hospice should hospices should keep in mind.
00;02;35;18 - 00;03;05;14
Andrew Brenton
Right? Yes, absolutely. So, yeah, the CMS did a, relatively recently update the 60 day repayment rule. Kind of like you said, there's some, some new things. There's some things that didn't really change. So kind of at a high level, the so one thing that I guess did change, is what we kind of call the identification standard.
00;03;05;14 - 00;03;41;23
Andrew Brenton
So once you identify high and overpayment, right, you have 60 days to return that overpayment. That's actually a statutory requirement. And it's in this Medicare 60 day repayment rule that that CMS kind of fleshes out what that means. So under the old rule, essentially there was, I guess, a lower standard for triggering that identification, 60 day requirement, as a result of some, some lawsuits or a lawsuit that was filed by some Medicare Advantage plans.
00;03;41;25 - 00;04;20;03
Andrew Brenton
The, I guess the federal court determined that that previous standard, which was based on, negligence, was kind of a lower legal standard, was unlawful, in terms of imputing False Claims Act liability. So there's kind of a heightened standard now relative to the old rule, in order to truly identify and overpayment for purposes of triggering the repayment obligation, provider now has to know that there was an overpayment, which means one of several things, actual knowledge that the overpayment exists.
00;04;20;05 - 00;04;41;19
Andrew Brenton
Acting in reckless disregard of whether or not the overpayment exists or acting in deliberate ignorance of whether the, overpayment exists. So no longer kind of, lower negligence standard, but it has to be a little bit more before you have to, you know, you trigger your obligation to make a repayment.
00;04;41;21 - 00;04;44;28
Bryan Nowicki
So that's and I think we've talked. Yeah. Go ahead I didn't mean to cut you off.
00;04;44;29 - 00;04;46;20
Andrew Brenton
No no no.
00;04;46;22 - 00;05;11;11
Bryan Nowicki
Yeah. And so I mean all this comes in the context of the False Claims Act. I mean it's really derivative of that that through the 60 day repayment rule providers have this obligation when they know they got paid for something they shouldn't have gotten paid for. They got to give it back to the government. And the False Claims Act is has some serious penalties to it.
00;05;11;15 - 00;05;35;26
Bryan Nowicki
Yeah. So if you fail to do that, it's like triple the amount you received. Attorney's fees and kind of on and on. And because it's such a big, it's such a such a hammer that the government has, you have to do more than just show that negligence, which is what the old 60 day repayment rule seemed to allow.
00;05;35;29 - 00;05;43;18
Bryan Nowicki
It's this whole knowingly standard. The False Claims Act doesn't go after honest mistakes or simple compliance issues.
00;05;43;20 - 00;05;44;02
Andrew Brenton
Right.
00;05;44;02 - 00;06;08;13
Bryan Nowicki
So yeah, I remember when that those cases came out and the court said, you know, you can't just do you can't just implement the 60 day repayment obligation based upon lack of reasonableness, which is another way of saying negligence. It's got to be more than that. But and kind of going back to you mentioned identifying the overpayment. What are some situations that we've encountered?
00;06;08;13 - 00;06;13;25
Bryan Nowicki
I mean, how do how how is an eye an overpayment identified and how does that come to our attention?
00;06;13;25 - 00;06;41;21
Andrew Brenton
Yeah, many different ways. A common way I would say is, kind of audit results. So if you know, you have like a you pick or a mac reviewing some of your records because you had to submit them for an ADR and they come back and issue claim denials because let's say, you know, your certification was late or you missed a face to face.
00;06;41;23 - 00;07;16;24
Andrew Brenton
If that issue, you know, sort of is a kind of a systemic issue, it isn't sort of like a one off mistake, you know, that can be considered kind of having knowledge, that there might be a potential overpayment with respect to similarly situated claims. So, you know, if the late certification was due to a process issue or if the missed face to face was due to a process issue, or, you know, let's say you had a, a nurse that you discovered was unlicensed.
00;07;16;26 - 00;07;43;20
Andrew Brenton
This kind of comes up a lot. So I guess wouldn't necessarily be like an audit situation. But let's say your HR team finds out that you had a nurse that was, you know, doing discipline visits for many months. You know, that can trigger an overpayment. Or repayment obligation. Because their the condition of payment, they have to provide services in accordance with the care plan, which would include visit frequencies.
00;07;43;23 - 00;08;15;17
Andrew Brenton
We've also seen kind of like if you have third party consultants that you hire to kind of do some auditing, they can find these, kind of issues that can sort of imply some systemic, bigger things going on that, you know, could again, trigger this, repayment obligation, which as we can get into here does have there's kind of an investigation period that you're afforded under both the old and the new 60 day repayment rule.
00;08;15;20 - 00;08;43;11
Bryan Nowicki
Yeah. So external audits, internal audits, you know, the hotline complaint hotline that hospices should have I think that's recommended by CMS. Or maybe somebody calls in and identifies a problem, but all sorts of different sources can lead a hospice to conclude. Well, this implicates a condition of payment. We we dropped the ball. We screwed up. We think we now have to pay some money back to the government.
00;08;43;13 - 00;09;05;12
Bryan Nowicki
Let's look into this. And you mentioned this investigation, component of the 60 day repayment rule. Why don't you kind of describe that in the time frames? Yeah. That apply to the the repayment. I mean, we call it the 60 day repayment rule, but that's a bit of a that's too simple of an answer. Unfortunately, there's more to it than that kind of scope that out for it.
00;09;05;16 - 00;09;35;03
Andrew Brenton
Exactly. So yeah, it's it's 60 days is how long you have to make a repayment once you know that there is a repayment. So kind of that identification standard. And actually I'll insert here that if, if you're a provider that does cost reporting like hospices, home health agencies, technically it's, it's the later of 60 days from identifying the overpayment to the due date of the cost report.
00;09;35;03 - 00;09;59;13
Andrew Brenton
So like if, if the whole overpayment occurred within like the current cost reporting year, for example, you know, you could have until May of the following year actually to make a repayment. So and that way too, that sort of the 60 day repayment rule is a bit more complicated than 60 days. But additionally, again, you're afforded an investigation period.
00;09;59;13 - 00;10;31;09
Andrew Brenton
So and under the the new rule, it sort of distinguishes between the initially identified overpayment and then related overpayments. So, you know, overpayments that are the result of sort of the same or similar issue or a cause as the cause of the initially identified overpayment. So, you know, so you had the 60 days, and then under the new rule, you have up to 180 days to conduct your investigation.
00;10;31;12 - 00;10;55;19
Andrew Brenton
So once you, you know, know, for example, that you have an overpayment, it is important to get started on that investigation right away so that you can, you know, sort of buy yourself more time to really get to the bottom of whether this is an isolated issue or whether they're, you know, it's more systemic, kind of a bigger issue that may have related overpayments involved as well.
00;10;55;22 - 00;11;10;26
Andrew Brenton
So once you finish that investigation, you know, then you'll have, you know, the remainder of, you know, your 60 days to kind of go ahead and make your ultimate repayment after you've quantified everything.
00;11;10;29 - 00;11;34;16
Bryan Nowicki
So a couple of examples. Let me throw these at you, let's say through an internal audit. And, you know, unfortunately, this is a hospice that didn't do a pre billing audit. They're kind of reviewing things after the fact. They come upon a certification and the doctor failed to sign it or it was not a legitimate electronic signature.
00;11;34;18 - 00;11;52;12
Bryan Nowicki
And you don't have any reason to think this is anything but a one off. So if that's what they came across, you think, you've concluded maybe you have arguments, but you concluded, well, we're going to make a repayment. Is that a 60 day? Is that a 180 day investigation? What category does that fall in?
00;11;52;19 - 00;12;22;23
Andrew Brenton
That would be the 60 days again, kind of under that hypothetical, we don't think there is any related overpayments. And the purpose of the investigation under the new rule is focused on the related overpayment. So in that example, you would just have the 60 days or kind of that cost reporting exception day. Technically you, you know, would have until the end of the corresponding cost report period, the rather the due date for submitting the cost report for that period.
00;12;22;25 - 00;12;49;18
Bryan Nowicki
So a slightly different example. You have a certification. It's signed by the physician. So that's not the problem. But on the preprinted certification form there is no statement that says I composed this narrative based upon my review of the patient record or examination of the payment. It's just gone. Not part of the form. And you use an EMR.
00;12;49;21 - 00;12;57;29
Bryan Nowicki
So it's kind of a standard form. Where do you think how would you categorize that or what do you think the timelines are for that?
00;12;58;01 - 00;13;29;28
Andrew Brenton
Well, that is an unfortunate issue to have this cover because yeah, likely all of your certification forms are going to be impacted by that and a systemic built in EMR issue. So definitely, you know, I'd say the likelihood of related overpayments. So once you identify that overpayment right. You know 60 days, if you start the investigation immediately like on day zero, then you have 180 days up to 180 days.
00;13;29;28 - 00;13;51;20
Andrew Brenton
I mean, you shouldn't sort of dilly dally, you know, kind of get started on the investigation so you can maximize your time. But you would have 180 days. Then again, assuming you started the investigation immediately, you would at the end of that, up to 108 day period, you would have, up to 60 days to repay. Or again, with the cost reporting exception.
00;13;51;23 - 00;14;18;16
Bryan Nowicki
Yeah. And I guess let's hope in that investigation, this was a limited glitch in the EMR that didn't affect every single document there. Or maybe the doctor, as at times wrote in certain not acceptable language. I think those are all circumstances, Andrew, you and I have encountered where in the course of an investigation you find issues like that that help limit or, you know, maybe they even expand, what you're talking about.
00;14;18;16 - 00;14;20;07
Bryan Nowicki
You got to go where the facts take you.
00;14;20;07 - 00;14;38;29
Andrew Brenton
So exactly. And that's. Yeah, that's why it's so important to have kind of the most amount of time as you can for the investigation because oftentimes, you know, we could come up with creative but credible legal arguments, to kind of mitigate the overall repayment amount.
00;14;39;01 - 00;14;52;15
Bryan Nowicki
Okay. So I think that's a significant change. The whole how you identify and then the time frame, how that's calculated, what is stayed the same with the 60 day repayment rule?
00;14;52;17 - 00;15;17;02
Andrew Brenton
I think the biggest is the six year left back period. So again we're talking about Medicare overpayments. Which are the only types of overpayments that are subject to the 60 day repayment rule. For Medicaid overpayments, they're still subject to the statutory requirement to return overpayments within 60 days. But in terms of the Medicare rule, we have a six year left back period.
00;15;17;02 - 00;15;42;05
Andrew Brenton
We have always had a six year lookback period. So and again, that's getting at, you know, in terms of your obligation to return identified overpayments, that applies, you know, six years into the past. So you're not expected to go hunt down every, you know, potential overpayment related to kind of the same issue indefinitely back in time sort of cap at six years.
00;15;42;05 - 00;15;45;20
Andrew Brenton
And that was the case. And that still is the case.
00;15;45;23 - 00;16;03;07
Bryan Nowicki
All right. So what kind of words of advice or guidance can you provide to people as they're beginning this, this journey into the 60 day repayment rule? They found something that they think is an overpayment. What are some general general steps or pointers you can provide to them?
00;16;03;10 - 00;16;26;05
Andrew Brenton
Well, I do think it's often very helpful to engage counsel, not to sound self-serving. I mean, to your earlier point, it's not always required or even necessary, but, oftentimes it can be very helpful. You know, we do a lot of this work. We oftentimes can, kind of come up with creative arguments or just ways to kind of think about things.
00;16;26;07 - 00;16;55;09
Andrew Brenton
And then also, you know, privilege. Right? We, you know, the kind of the communication we do with you under engagement is protected by the client privilege. I mentioned this earlier. Act promptly, especially under the new rule, where you know that you have the 100 day, 80 day investigation period, but technically, you only have that up to 180 days from the date that you identify the overpayment.
00;16;55;09 - 00;17;16;28
Andrew Brenton
So it is really important to get started on the investigation right away. So you can kind of make full use of that hundred a day period. Plus have the 60 days at the end of that. And again, you probably don't want to use the full amount of time if, you know, you reasonably don't have to. If the investigation can be done quicker.
00;17;17;01 - 00;17;40;20
Andrew Brenton
And then as always, just kind of documenting everything is very helpful. You know, you want to five years from now, be able to kind of understand the decisions that were made, kind of what your process was. If you did rely on repayment arguments to kind of, you know, minimize the repayment amount, you, you know, want to be able to kind of fully articulate that.
00;17;40;22 - 00;17;48;22
Andrew Brenton
So, I mean, contemporary documentation is very helpful. So those are kind of the high level, words of wisdom, I guess.
00;17;48;25 - 00;18;13;12
Bryan Nowicki
Yeah. I think, you know, we know with auditors they can go back for years. So some of these things may not come up for years later. The statute of limitations for the false claims lack is six years or ten years, depending upon the kind of violation it is. So yeah, it's it's important to have that institutional knowledge because, you know, there's turnover now.
00;18;13;12 - 00;18;36;00
Bryan Nowicki
Nobody has the perfect memory. And your point about engaging legal counsel or at least speaking to them, you know, I know, you know, on a number of occasions I'd get a call and I'm able to walk somebody through the highlights of an investigation and in an hour and they're kind of comfortable moving ahead on their own. And so in our consult is enough.
00;18;36;01 - 00;18;50;00
Bryan Nowicki
And Andrew, I know you get involved in very complex investigations where you are taking the lead necessarily because it just requires a lot of legal analysis, but it can be anywhere in between those two, those two, poles.
00;18;50;00 - 00;18;51;21
Andrew Brenton
So, yeah.
00;18;51;24 - 00;19;09;17
Bryan Nowicki
So, now, now you've developed a tool here to help sort all this out, because even in our brief conversation, you know, a lot of, you know, jargon has come up. It's clearly a complex area. So what have you developed to help our clients out?
00;19;09;19 - 00;19;20;17
Andrew Brenton
Well, we have a very handy one page handout that is available on our website. I think it's going to be included in the podcast materials as well.
00;19;20;19 - 00;19;26;25
Bryan Nowicki
This has got to be what's the cost? Is it $1,000? Is it $2,000?
00;19;26;28 - 00;19;31;14
Andrew Brenton
Yes, it's $2,000. No it's free of course.
00;19;31;16 - 00;19;36;26
Bryan Nowicki
What what a deal, what a deal exactly.
00;19;36;28 - 00;20;02;29
Andrew Brenton
So yeah, it's sort of intended to be kind of a quick reference guide here, kind of summarizing essentially what we've been talking about, but in a more, I think, practical, letter kind of compliance, you know, officer Friendly, you know, focused version of what we're talking about. So kind of gets into the different time frames that you have to worry about, kind of what triggers the different events.
00;20;02;29 - 00;20;27;26
Andrew Brenton
And of course, buying time frame, the kind of gives a couple of examples, of kind of how an investigation might kind of proceed and what the different time frames would be for kind of those two examples. So again, it's kind of a one pager, quick reference that I think will be helpful for compliance teams.
00;20;27;28 - 00;20;50;14
Bryan Nowicki
Great. Well, you're, you're, you're chewing into our team's profits here. Andrew, by not, marketing this at it at its, full value, but, well, we love helping our clients and hospices, and this is a real can be a quagmire. It can be confusing. I think I took a look at that one pager. I think it really clearly lays out all the key elements and the time frame.
00;20;50;16 - 00;21;01;08
Bryan Nowicki
So if you're ever encountering this situation, you can start to calculate what are your deadlines? What do you need to do? Buy when. So you try to stay compliant. So thanks for putting that together.
00;21;01;10 - 00;21;02;22
Andrew Brenton
Yeah you bet.
00;21;02;24 - 00;21;27;09
Bryan Nowicki
And thanks for the podcast Andrew. Appreciate the time and the subject matter. Very important stuff. And everybody who's listening, you'll be able to access that free form, that free one pager. In our episode notes. So feel free to go there and download it, then make use of it then, Andrew and I and our whole team, we're here to answer any questions you have so thanks for listening and take care.
00;21;27;12 - 00;21;31;18
Bryan Nowicki
Thank you.
00;21;31;20 - 00;21;51;20
Bryan Nowicki
That's it for today's episode of Hospice Insights: The Law and Beyond. Thank you for joining the conversation. To subscribe to our podcast, visit our website at huschblackwell.com or sign up wherever you get your podcasts. Until next time, take care.