Government Contracts Monitor

The Affordable Care Act’s “Hidden” Enforcement Initiatives

July 20, 2012

With all the media focus on the Affordable Care Act’s (“ACA”) regarding the individual mandate provision and the political impact of the recent Supreme Court ruling upholding the law on the November elections, a significant portion of the law has gone virtually without discussion – the enhanced enforcement tools in the ACA which will impact the health care industry for many years.

The ACA provides $350 million dollars over the next 10 years to the Health Care Fraud and Abuse Control Program (“HCFAC”), a joint effort of the Department of Justice and Department of Health and Human Services.  This funding will include hiring of “new officials and agents that can help prevent and identify fraud.”  The funding will also support the ACA’s requirement that HHS enhance screening and enrollment requirements, including requiring a compliance program as a condition for enrollment that details procedures for following the rules and preventing fraud.  The ACA also requires increased data sharing across government agencies, and increased oversight of private insurance abuses.  See The Affordable Care Act:  New Tools to Fight Fraud, Strengthen Medicare and Protect Taxpayer Dollars, https://www.healthcare.gov (last visited June 28, 2012).  In addition to these tools, the ACA permits the temporary stoppage of payments to providers and suppliers if there has been a credible fraud allegation. 

The ACA also authorizes Recovery Audit Contractors to identify and recover overpayments, and also requires that providers, suppliers, Medicare Advantage plans and Part D plans self-report and return Medicare and Medicaid overpayments within 60 days of identification.  If the overpayment is not identified in that time frame, the overpayment becomes an obligation for purposes of the False Claims Act. 

These enhanced tools will certainly lead to more investigations and more aggressive activity to combat fraud and abuse in the health care industry.  Any provider, supplier, or company looking to enroll in Medicare or Medicaid should note these enhancements and be prepared for them.

Brian Stolarz is the attorney responsible for the content of this article.