In a Law360 article, health care partner Stephanie Webster (Washington, D.C.), health care associate Devin Cohen (Boston) and litigation & enforcement associate Stefan Schropp (Washington, D.C.) examine a ruling by the Court of Appeals for the D.C. Circuit that reinstates the Medicare Advantage Overpayment Rule with significant compliance and legal implications for Medicare Advantage organizations.
The authors explain that as the industry awaits final resolution in the courts, it is as important for those participating in Medicare Advantage to be diligent in returning any overpayments they identify, and to structure audits in ways that avoid credible accusations of reckless disregard to over-payments. While there is a chance that the decision is reversed either on rehearing or by the Supreme Court, the D.C. Circuit’s decision may ultimately be the authority future False Claims Act plaintiffs invoke to demonstrate that regulated entities were on notice of their obligations with respect to repayments for unsupported coding.
They note the decision is a reminder to those aggrieved by agency action to consider challenges to that action if possible before becoming subject to enforcement actions.
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