Today, the Centers for Medicare & Medicaid Services
(CMS) released the final version of a 2012 proposed rule that requires Medicare
Parts A and B health care providers and suppliers to report and return
overpayments by the later of the date that is "60 days after the date an
overpayment was identified, or the due date of any corresponding cost report if
applicable." A separate final rule was published on May 23, 2014 that
addresses Medicare Parts C and D overpayments.
Background
The final rule implements Section 6402(a) of the Affordable
Care Act (ACA), now also Section 1128J(d) of the Social Security Act. The
provision impacted Medicare and Medicaid immediately upon implementation in
March 2010. Section 6402 increased the penalty for failure to return overpayments
from Medicare and Medicaid payments and mandated the timeline for returning
those overpayments. Its impact solely under the statute has not been
determined. CMS issued an implementing proposed rule on February 16, 2012 with
comments due by April 16. AHCA's comments are available here.
Preliminary Details
Section 6402 increases the penalty for failure to return
overpayments from Medicare and Medicaid and mandates the timeline for returning
those overpayments by providing a return deadline of 60 days after the identity
of an overpayment.
60-Day Timeframe Further Defined: The 60 day timeline is a
new requirement as stipulated in Section 6402. No timeline had ever before been
provided. However, CMS did modify its interpretation of when the 60 day clock
starts stating that "the 60-day time period begins when either the
reasonable diligence is completed or on the day the person received credible
information of a potential overpayment if the person failed to conduct
reasonable diligence and the person in fact received an overpayment."
Look-Back Period ReducedIn the proposed rule, CMS
indicated a 10 year look-back period for potential overpayments. In the final
rule the look-back period for overpayments is six years, reduced from 10 years
in the proposed rule.
Finally, as stated in the proposed rule, failure to report
overpayments within the 60-day time period looking-back over six years could
put providers at risk of a possible violation of the False Claims Act (FCA).
View the AHCA/NCAL member guidance on the FCA.
Further Information
Next week, AHCA/NCAL will produce a summary of the final rule as well as a suggested checklist of 60-Day Rule activities members should
undertake to avoid challenges under the final regulation. If you have
questions, suggestions or concerns, please contact Mike Cheek.
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