Notification of undue payment - Procedure for action to recover undue payment

If, at the end of an activity check carried out by the medical department or the administrative funds, the Assurance Maladie decides to maintain all or part of its grievances and take legal action against the inspected pharmacist, it will initiate a procedure known as "recouvrement de l'indu" (articles L 133-4 and R 133-9-1 of the French Social Security Code).

Notification of undue payment, together with a summary table of billing anomalies, is the first step in the dispute procedure, before any formal notice, coercion and/or legal proceedings.

Depending on the amounts at stake, this notification of undue payment may be particularly serious, requiring special attention to both form (regularity of the procedure followed) and substance (evidence and contestation of the alleged facts) in order to ensure an effective appeal.

‍

How does the notification of undue payment work?

Action to recover undue payments is time-barred three years from the date of payment of the undue amount by the CPAM concerned, except in the case of fraud, in which case the statute of limitations is five years.

It is initiated by a notification sent to the pharmacist by the director of the Assurance Maladie organization. This notification, which interrupts the statute of limitations, is sent by any means that provides proof of its date of receipt, i.e. in practice by registered letter with acknowledgement of receipt or by hand delivery.

The notification must specify the cause, nature and amount of the sums claimed and the date of the undue payment(s) giving rise to recovery, as well as the channels and deadlines for appeal. This is a requirement in order to ensure that the notification of undue payments is in order.                                          

If the capacity of the person signing the notice to pay is irrelevant to its validity, it cannot be duly addressed to a person other than the pharmacist concerned.

The pharmacist has two months from receipt of the notification to pay the sums claimed, unless he or she decides to submit written observations to the CPAM's Commission de recours amiable (CRA).

Oral or written observations may also be submitted to the director of the CPAM concerned. Please note, however, that this will not interrupt the time limit for lodging an objection with the CRA.

It should also be noted that referral to the relevant CRA, either at this stage or at a later date when formal notice is served, will be a prerequisite for any contentious appeal.

In the absence of a response within two months of receipt of the claim by the CPAM concerned, the pharmacist's request may be deemed to have been rejected.

What are the consequences of notification of undue payment?

If the pharmacist's claim is rejected in whole or in part, the notification of undue payment will be followed by a formal notice from the director of the relevant CPAM.

This formal notice must meet the same requirements in terms of motivation as the notification. Once again, this document may not be regularly addressed to anyone other than the pharmacist concerned, and must be signed by an authorized person.  

In order to comply with the requirement to state reasons, the formal notice must include the cause, nature and amount of the sums still claimed, the date of the undue payment(s) giving rise to recovery, the reason which, where applicable, led to the total or partial rejection of the observations submitted, and the existence of a new one-month deadline for payment of the sums claimed, starting from receipt of the formal notice. It also indicates the existence and amount of the 10% surcharge applied in the event of non-payment within this timeframe, and the means and deadlines for appealing.

Note: if the undue payment is made within one month, the 10% surcharge may be remitted by the director of the relevant CPAM at the professional's request, either if the professional is acting in good faith, or if the amount of the undue payment is less than the applicable threshold set by order of the Minister for Social Security.

If the formal notice remains without effect after a period of one month from its notification, the directors of the creditor organizations may issue a constraint which will be notified to the pharmacist.

With this in mind, it is advisable to refer the matter to the Social Division of the Court of First Instance, provided that this referral is consistent with the grievances raised.

‍