Medicare Compliance & Reimbursement

You’re still subject to the rule, even if the overpayment wasn’t your fault.

The Centers for Medicare & Medicaid Services (CMS) isn’t giving you much leeway when it comes to the 60-day overpayment rule. In fact, CMS confirmed in the final rule its staunch position on the 60-day rule’s repayment requirements, regardless of how or why the overpayment occurred.

1. Third-Party Anti-Kickback Violations: In the rule’s preamble, CMS affirmed its position that compliance with the Anti-Kickback Statute is a condition of payment and, therefore, you could have a repayment obligation arising from a third party’s violation of that law, according to a Feb. 12 summary by Ropes & Gray LLP. For example, a hospital could be obligated to refund Medicare payments for surgeries performed by a physician who received kickbacks from a device manufacturer to implant its device.

But CMS also stated it would “suspend the repayment obligation until the government has resolved the kickback matter” and that its “expectation is that only the parties to the kickback scheme would be required to repay the overpayment … except in the most extraordinary circumstances.”

2. Overpayments Not Caused by Provider/Supplier: Commenters on the proposed rule said that CMS should exclude overpayments not caused by the provider or supplier, or that otherwise were outside the provider’s or supplier’s control, from the final rule’s definition of overpayment, Ropes & Gray reported. For instance, situations where a Medicare contractor makes a duplicative payment, or a CMS system error classifies a Medicare beneficiary as fee-for-service when the beneficiary is enrolled in a Medicare Advantage plan.

But CMS decided not to exclude these from the overpayment definition, meaning that these situations are still subject to the 60-day deadline, according to Ropes & Gray. “Practically speaking, this will require providers and suppliers to assure that they have proactive compliance activities to detect errors made by other entities, including CMS itself.”

3. Tolling the Overpayment Deadline: If you use the CMS Voluntary Self-Referral Disclosure Protocol or the HHS Office of Inspector General (OIG) Self-Disclosure Protocol, this will toll the deadline for returning an overpayment, CMS confirmed. But CMS did not extend the tolling to self-disclosures made to other government agencies, such as the Department of Justice.