The Clock’s Running Fast: The First Decision Interpreting “Identification” Under the FCA’s “60-Day-Rule” for Government Overpayments Is Here

Houston Medical Times September 2015

George B. Breen, Chair of the Firm’s National Health Care and Life Sciences Practice Steering Committee, and Daniel C. Fundakowski, an Associate in the Health Care and Life Sciences practice, authored an article in the “Legal Health” column of the Houston Medical Times, titled “The Clock’s Running Fast: The First Decision Interpreting 'Identification' Under the FCA’s '60-Day-Rule' for Government Overpayments Is Here.”

Following is an excerpt:

On August 3, 2015, in United States ex rel. Kane v. Healthfirst, Inc., et al., the United States District Court for the Southern District of New York issued the first reported opinion on the False Claims Act’s (“FCA’s”) reverse false claim overpayment provision and determined when an overpayment is deemed “identified” by a health care provider. Denying a motion to dismiss, the court held that the FCA’s statutory 60-day clock for repaying “identified” overpayments begins ticking “when a provider is put on notice of a potential overpayment, rather than the moment when an overpayment is conclusively ascertained.” This case is the first of its kind, and will be perceived as a significant victory by government enforcers and qui tam relators who will use it as precedent. However, the vagueness of the FCA overpayment provision should be the subject of future appeals and continued challenges. Nevertheless, health care entities need to be aware of this decision and its short-term ramifications.

The article is based on the authors' client alert "The Clock’s Running Fast: SDNY Is First to Interpret 'Identification' Under the FCA’s '60-Day-Rule' for Government Overpayments."