President Obama signed the Fraud Enforcement and Recovery Act of 2009 on May 28, 2009, which is the effective date of the Act.
I am attaching a compared version identifying all the changes, but I would like to direct your attention to what I believe is the most significant change impacting typical healthcare providers.
Retentions of Overpayments.
This has always been a troublesome issue, and it has been unclear whether the False Claim Act, and its significant civil money penalties, would be applicable to overpayments not arising out of obviously false claims. FERA resolves this doubt by defining a false claim as "knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the government." This situation is often referred to as a "reverse false claim," because no false claim has been filed, but obvious overpayments exist. The language still has subjective elements, i.e. "knowingly conceals" or "knowingly and improperly avoids or decreases," and that raises questions regarding obligations to audit, extrapolate, refund, etc.
We can say at this point that healthcare providers have been put on notice that the Government intends reverse false claims or retention of overpayments to be included within the scope of the False Claims Act.
The civil penalties associated with the false claims remain at $5,000 to $10,000 per claim, plus treble damages for the unpaid amounts.
