CMS Issues Proposed 60-Day Rule on Return of Medicare Overpayments

On February 14, 2012, the Centers for Medicare & Medicaid Services released a proposed rule regarding reporting and returning overpayments under the Medicare program. Under the new regulation, hospitals and doctors who receive Medicare funds would be required to report and return overpayments within 60 days or face significant damages and penalties. 

For your reference, a roundup of legal commentary on the proposed rule and its impact on Medicare providers:

Medicare Confirms Requirement to Return Overpayments Within 60 Days (Jackson Walker)

The proposed rule requires “… Medicare providers and suppliers to report and return Medicare overpayments by the later of 60 days after the date on which the overpayment was identified, or the date any corresponding cost report is due. Failure to identify, report and return the overpayment within the 60 day deadline constitutes a false claim under the False Claims Act, which subjects the provider or supplier to additional penalties under the law.” Read more»

The 60 Day Rule: CMS Issues Proposed Rule on Reporting & Return of Overpayments (Ropes & Gray LLP)

“The Proposed Rule requires providers and suppliers to ‘return and report’ overpayments through the self-reported overpayment refund process found in the Medicare Financial Management Manual. This requires use of a form developed by each Medicare Administrative Contractor, which calls for, among other categories of information, disclosure of the cause of the overpayment and corrective action that has been taken.” Read more»

The 60-Day Deadline to Repay Medicare Overpayments: What Did You Know and When Did You Know It? (Davis Wright Tremaine LLP)

“One of the most critical questions raised by the ACA is when the 60-day period begins, because providers are at risk for civil penalties and face potential FCA liability on the 61st day. Under the proposed regulations, the 60-day clock begins running when a provider acts in deliberate ignorance or reckless disregard of information that an overpayment may exist. In CMS’s view, ‘an overpayment has been identified at the time that a person acts with actual knowledge of, in deliberate ignorance of, or with reckless disregard to the overpayment’s existence.’” Read more»

Proposed Rule: Reporting and Returning of Overpayments (King & Spalding)

“… the Proposed Rule does not address how one determines who in the organizational hierarchy can determine when an overpayment has been ‘identified.’ Determining whether an overpayment exists under complex billing and cost report rules is often not a black and white exercise, and an initial determination by a lower level employee should arguably be insufficient to trigger the 60-day clock.” Read more»

CMS Publishes Proposed Rule on Return of Medicare and Medicaid Overpayments (Mintz Levin)

“The proposed rule applies only to overpayments identified by Medicare Part A and B providers and suppliers, but CMS made clear that Medicare Advantage Organizations, Medicaid Managed Care Organizations, and Prescription Drug Plans under Medicare Part D still have an obligation under various statutes to report and return overpayments.” Read more»

CMS Publishes Proposed Rule on Reporting and Returning Medicare Overpayments (McDermott Will & Emery)

“CMS also proposes a 10-year look-back period (i.e., the obligation to report and return an overpayment applies if the overpayment is discovered within 10 years of the date the overpayment was received). To facilitate this look-back period, CMS proposes to amend its regulations that generally limit the claims reopening period to four years to allow for a 10-year reopening period for claims resulting in a reported overpayment.” Read more»

Medicare’s 60-Day Overpayment Rule: Uncorrected Mistakes Become False Claims (Warner Norcross & Judd)

“Once the 60-day clock starts, the provider generally must determine the amount of the overpayment and return the entire overpayment to CMS within that time. However, the 60-day deadline will be extended if the provider sends a formal submission under either the OIG’s Self-Disclosure Protocol or CMS’s Self-Referral Disclosure Protocol. Also, if a provider is financially unable to pay back the entire amount of an overpayment within 60 days, the provider can request extended payment terms.” Read more»

CMS Issues Proposed 60-Day Rule for Reporting and Returning of Overpayments (Katten Muchin Rosenman LLP)

“CMS reiterates that claims including items and services resulting from a violation of the Anti-Kickback Statute are not payable and constitute false or fraudulent claims for purposes of the False Claims Act… However, CMS recognizes that providers and suppliers often are not a party to, and are unaware of, arrangements between third parties that would cause the provider or supplier to submit claims that are the subject of a kickback.” Read more»

The Clock Is Ticking: CMS Issues a Proposed Rule on Reporting and Returning Overpayments (Epstein Becker & Green, P.C.)

“Until now, regulators, courts, clients, and members of the bar have taken different positions on Section 6402(a). The Proposed Rule provides CMS’s view on this matter, and, given that CMS is proposing a number of potentially onerous requirements with regard to investigating, reporting, and returning overpayments, stakeholders should consider submitting comments to the Proposed Rule, which are due no later than 5 p.m. on April 16, 2012.” Read more»

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