On February 17, through a Federal Register notice CMS announced it will push back finalizing its February 16, 2012 proposed rule concerning the reporting and returning of Medicare overpayments, one more year. “Based on both public comments received and internal stakeholder feedback, CMS has determined that there are significant policy and operational issues that need to be resolved in order to address all of the issues raised by comments to the proposed rule and to ensure appropriate coordination with other government agencies.” “Specifically, the development of the final rule requires collaboration among both the Department of Health and Human Services’ (HHS’) Office of the Inspector General and the Department of Justice.”
CMS had received a large number of comments from providers and suppliers and their industry associations that the 2012 proposed rule’s refund reporting policies and procedures would impose significant administrative burdens, particularly the provision that allows CMS a 10-year look-back period on claims not identified by a provider or supplier. This provision “led to harsh industry criticism that the agency is overstepping its statutory authority because it conflicts with shorter look-back periods for Part C and D overpayments.”
Under the Affordable Care Act, providers already must return overpayments within 60 days of identifying them. Even though the rule is not final, failing to report overpayments can result in liability under the False Claims Act, carrying fines as high as $10,000 per unreturned overpayment, as well as possible exclusion from Medicare.
Despite the extension to February 16, 2016, CMS is committed to “publishing a final rule that provides clear requirements for reporting and returning Medicare overpayment such as what constitutes “identification” of an overpayment, the mechanics of when and how an overpayment must be returned, and the period of time subject to repayment.”