In emergency medicine, you’re at risk every day. With the dizzying array of procedures conducted in the ER, chances are good that inadequate, noncompliant documentation in medical practice billing will result leading to overbilling and high paid claim error rates. And with PPACA phasing in and ICD-10 looming…it’s enough to make you feel faint and need a gurney in your own department.

If there was ever a time when you needed a healthcare revenue cycle management team that understands the intricate nuances of emergency medicine coding, billing and collections, it’s now, when CMS is increasing audits resulting from overpayments.

When it comes to overpayments, there are many questions that arise and answers need a legal perspective. Polsinelli law firm’s Jeffrey Fitzgerald, Esq. and Asher Funk, Esq. address some of the most commonly asked questions representing all medical specialties.

Is there a duty to repay overpayments to Medicare?

Yes. An overpayment is defined as any funds that a “person” (enrolled Medicare provider or supplier) receives or retains under Title XVIII or XIX to which the person, after applicable reconciliation, is not entitled under such title.

Any overpayment retained after the deadline for reporting and returning is an “obligation” (as defined by the False Claims Act or FCA). FCA liability exists when knowingly concealing or knowingly and improperly avoiding or decreasing an obligation to pay or transmit money or property to the government (31 U.S.C. 3729(a)(1)(G).

Who has to make the repayment?

The entity that receives the Medicare/Medicaid payment has the duty to repay.

According to the Patient Protection and Affordable Care Act (“PPACA”) Section 6402:

  • If a person has received an overpayment, that person shall:
  • Report and return the overpayment
  • Notify the Secretary, … in writing of the reason for the overpayment
  • The overpayment must be reported and returned by the later of:
  • The date which is 60 days after the date on which the overpayment was identified; or
  • The date any corresponding cost report is due, if applicable

If there is a potential overpayment, how far back should we audit?

When did the problem start? Factually speaking, is it based on a change in a billing system or software, or on HR changes or employee conduct? Can you go back and pinpoint a time frame based on these factual changes? If not, then look at the legal limits.

If there is no factual limit, look at the legal limits:

  • Medicare claims reopening: 4 years (42 C.F.R. 405.980(b), 42 U.S.C. 1395ff(b)(1)(G))
  • Revisions to overpayment “recovery” period in the American Taxpayer Relief Act of 2012 do not require longer look-back period (extended recovery period from three years to six years (42 U.S.C. 1395gg(b))
  • False Claims Act: 6 years

NOTE OF DISCLAIMER: This blog is for general informational use only. Please consult with your legal counsel and/or the experts at for advice specific to your emergency medicine practice. is the results-proven alternative for physician medical billing, with a niche specialization in emergency coding and billing that generates unprecedented results and builds profitable medical practices. Leveraging a history of industry wide success spanning 25 years, partners with medical practices throughout the U.S. to optimize revenue for hospital based and community based physicians. For more information, visit

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