February 22, 2012 | Comments Off on Medicare Publishes Proposed Rule Regarding Reporting and Return of Overpayments
Posted by Beth Christian
Last week, the Centers for Medicare and Medicaid Services (“CMS”) published in the Federal Register notice of a proposed rule concerning the reporting and return of overpayments to the Medicare program. The proposed rule will require providers and suppliers to report and return Medicare overpayments by the deadlines specified. Providers will need to be very mindful of these deadlines if they discover an overpayment, since the failure to report can give rise to potential liability under the False Claims Act and the Civil Monetary Penalties Law. In addition, any person who knows of an overpayment and fails to report can be excluded from participation in the Medicare or Medicaid programs.
The proposed regulations specify that a person has identified an overpayment if the person has actual acknowledge of the existence of the overpayment or acts in reckless disregard or deliberate ignorance of the existence of the overpayment. CMS gave the following as examples of when an overpayment has been “identified” for purpose of triggering a repayment obligation:
An identified overpayment must be reported and returned by the later of either of the following: (i) the date which is 60 days after the date in which the overpayment was identified; or (ii) the date any corresponding cost report is due, if applicable. The deadline for reporting overpayments will be suspended when either: (1) the OIG acknowledges receipt of a submission through the OIG Self-Disclosure Protocol until such time as a settlement is entered, the person withdraws from the OIG Self-Disclosure Protocol, or the person is removed from the OIG Self-Disclosure Protocol; or (2) CMS acknowledges receipt of a submission to the Self-Referral Disclosure Protocol under the federal Stark law until such time as a settlement agreement is entered, the person withdraws from the Self-Referral Disclosure Protocol, or the person is removed from the Self-Referral Disclosure Protocol.
The proposed rule also provides for a 10 year look back period. Therefore, under the proposed rule, an overpayment must be reported and returned if a person identifies the overpayment within 10 years of the date the overpayment was received.
CMS has announced its intention to standardize the form that will be used to report an identified overpayment. The proposed regulations specify that the following information needs to be included when a report of an overpayment is made:
While the proposed rule, when adopted, will standardize procedures for reporting of identified overpayments, Medicare providers and suppliers should be aware that the 60 day time frame, and the corresponding reporting obligations for reporting an overpayment, are already in effect., These obligations were imposed by a provision of the Affordable Care Act that became effective in 2010. Health care providers who suspect that an overpayment has occurred should proceed diligently to identify whether an overpayment occurred, and to fulfill their corresponding reporting obligations once an overpayment has been identified. Providers and suppliers should work closely with legal counsel to ensure that they are investigating compliance issues and submitting overpayment reports in conformity with applicable legal requirements.