Wednesday, December 12, 2012


Kaiser Health News and similar consumer organizations have a basic rule -- blame the health plan. That rule was followed to the letter in a recent article complaining about the overpayment recovery practices of an FEHB fee for service plan.  The article concerns a family member of an FEHB plan enrollee who reportedly underwent surgery about three years ago.  Recently, the plan asked her to refund a $9,000 payment that was made on an assistant surgeon's charges for this surgery. The plan explained that the payment was made in error. The article jumps to the conclusion that the plan was responsible for the error, but it's just as likely if not more likely that the surgeon committed a billing error.

As the health plan explained to the reporter, OPM requires FEHB plans to adopt and follow strict overpayment recovery rules. After all the claims dollars are paid out of and returned to the U.S. Treasury. (Your money is green but the government's is black and white striped.) One of those rules is that the plan must attempt to recover the overpayment from the party that received the overpayment.

 Here the patient received the payment because she used a non-participating provider.  The patient contends that the FEHB plan should seek the money from the provider, not her,  because she used the claim payment to pay the doctor.

The legal principle underlying overpayment recovery is restitution or unjust enrichment. Assuming that the patient owed the doctor $9,000, she was unjustly enriched by the plan's erroneous payment because the plan's payment relieved her of that debt. The doctor would not owe the money back, but the patient would. If there was a billing error. then it would be the provider's responsibility to refund the patient.

It's unfortunate that this issue arose but medical billing practices are complex and to err is human. The soundest course of action in such situations is to follow the OPM appeal process. The FEHB claim appeal process has lead to an external review by OPM for nearly forty years. The process is time tested and according to the OPM contract the carrier must suspend overpayment recovery efforts while the appeal is under OPM consideration.

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