OIG Files: Go Your Own Way 

August 5, 2022

While CMS reported that is collected half of the overpayments previously identified by OIG, the OIG in another recent review (full report) found that number to substantially less.

The OIG is the watchdog for HHS.  All OIGs serve in this role for the respective agency under which they operate.  CMS is just one of the over 300 operating divisions under HHS.  In my time at the OIG, I found that often a recommendation that was made by the OIG was debated, argued, and not always embraced. 

There could be a myriad of reasons for this, and I will not be speaking to them in this particular writing.  The main issue here is that collecting an overpayment from a CMS perspective is not as simple as just telling the provider they have 60 days to remit their payment.  Providers shut their operations down, do not have any claims pending for recoupment or “clawback,” and in the case of the most recent analysis, CMS appears to have been unable to provide supporting documentation to corroborate that the “half” was actually half (and more like a quarter). 

Recognizing that there are often times barriers and difficulties, OIG, in making its objective assessment of prior efforts to collect overpayments, made six (6) recommendations; CMS only sought to implement four (4) them.  By the way, this prior analysis was in 2012, so it actually makes the case a bit more difficult to swallow that in the 10 years since the last assessment, little has changed.

When I was first hired as an OIG agent, my friend, mentor, and the one person that I credit much of my career successes to, gave me lots of sage advice (a separate book of his “isms” will need to be published), told me that the OIG wants to keep the money and CMS wants to give it out.  That statement never rang truer to me than when I retired and embarked upon my next journey here at Advize

I have had the opportunity to work with many providers and law firms on matters where the OIG is involved, prosecutors and other entities seeking to recover monies for FWA.  

While much of what I do does in fact involve a repayment of funds, a damages calculation, and the like, I do see many instances where some of that is mitigated merely because of a poorly worded policy, practice, or methodology.  To see that CMS, overseeing a program that is going to be unfunded to the fullest possibility in the next few years, not able to implement the objective recommendations of the OIG, certainly does make me scratch my head. 

I do get it; no one likes to be told they are wrong or are not doing everything correctly.  No one, particularly in an environment where you are on a daily basis, being asked to justify everything that is done, wants that.  The OIG, however, is there for a reason; to ensure objective accountability. 

The OIG does not always get it correct and I see that in some of the work I do with providers who have been and are being investigated by the OIG, but I do believe that there is a difference in the development of an investigative strategy and the empirical assessment of a policy or practice that just was not implemented which could have moved the ball forward.

By Eric Rubenstein

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