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T HE AFFORDABLE CARE Act ush- ered in the latest expansion of civil monetary penalties that the Office of Inspector General (OIG) can impose to protect federal health care programs from fraud and abuse. Consistent with its authority, the Inspector General recently issued proposed rules aimed at physicians, other providers, and suppliers, who submit "false and fraudulent claims" or engage in "similar misconduct." Included in the proposed rules are new areas of prohibitive conduct that could subject a physician to penalties and/or exclusion from participating in Medicare, Medicaid, or other Federal health care programs, such as: (1) failing to grant the Inspector General timely access to records upon reasonable request; (2) ordering or prescribing while excluded when the excluded person knows, or should have known, that the item or service may be paid for by Medicare or Medicaid; 3) making false statements, omissions, or misrepresentations in an application to participate in a Federal health care program; and (4) making or using a false record or statement that is material to a false or fraudulent claim. It's pretty easy for any right-minded physician to avoid these four rather conspicuous areas of misconduct. Just remember the admonition: "It's not nice to try to fool the Inspector General." It is the fifth area of covered conduct identified in the proposed regulations that should be of particular concern to providers. Under the ACA, physicians must report and return "overpayments" (i.e. any funds a provider receives or retains under Medicare, Medicaid, or TRICARE, regardless of amount, that the provider is not entitled to receive) "… within 60 days after the date the overpayment was identified." The Inspector General proposed regula- tions seek to impose a penalty of no more than $10,000 per day for each known overpayment that is not returned and reported. Moreover, under the proposed rules, the Inspector General would not have to establish intent, if it were shown that the provider acted with deliberate ignorance or reckless disregard. This particular proposal has drawn considerable criticism from commenta- tors, who urge the Inspector General to reconsider by applying the $10,000 penalty on per-item or service, rather than on a per-day, basis. Regardless of which application appears in the final regula- tions, it will be imperative for physician practices to remain vigilant in order to identify and repay overpayments. But, if a practice were to miss a repayment deadline, the proposed rules permit the Inspector General to consider the provider's voluntary implementation of a corrective action plan, aimed at prevent- ing recurrence, as a mitigating factor. The Inspector General, also, will likely be able to consider additional factors for determining the amount of penalty, including: (1) the nature of the violation; (2) the degree of guilt by the practitioner; (3) the existence of any prior offenses; (4) any other wrongful conduct; and (5) other matters as justice may require. Expansion of civil monetary penalties in the proposed regulations promises to have a huge financial impact. At times like these, it is prudent for physician practices to review and update their office compliance programs. Joe Feltes is an attorney with Buckingham, Doolittle & Burroughs in Canton and a member of its Health & Medicine Practice Group. He is also the managing partner of Buckingham Canton. For more information about the law firm, go to www.bdblaw.com or email Mr. Feltes at JFeltes@BDBLAW.com. ■ By Joseph J. Feltes, JD to EXPAND Civil Monetary Penalties OIG Seeks The Inspector General proposed regulations seek to impose a penalty of no more than $10,000 per day for each known overpayment that is not returned and reported. 1 0 | Cleveland/Akron/Canton MD NEWS ■ M D N E W S . CO M