Medicare Compliance & Reimbursement

If you missed Medicare’s proposed rule on overpayment procedures, there’s still time to catch up — and offer your opinion.

Old way: The Centers for Medicare & Medicaid Services’ original overpayment rule “requires a provider who has received an overpayment to report and return it within 60 days of the date that overpayment was identified (in most cases),” explain attorneys Lori Wink, Scott Taebel and Kaitlin Nucci with law firm Hall Render in online analysis.

That rule uses the 2016 “reasonable diligence” standard, “which allowed a Medicare enrollee up to six months from the time they received credible information of a potential overpayment to investigate that potential overpayment,” Wink, Taebel and Nucci say. “It is not until after this six-month investigation period that the 60 days to report starts to run. In practice, this allowed enrollees a total of eight months to report and refund any overpayment and still be considered to have acted with ‘reasonable diligence.’”

New way: “Under the proposed rule … the False Claims Act definition of ‘knowingly’ would be adopted,” the Hall Render attorneys explain. “This proposed rule would eliminate the six-month investigation period which has proven to be of benefit to providers,” they say. “Instead, enrollees would be limited to only 60 days from the time they became aware, or from the time it is determined that they should have become aware … in order to report and refund an overpayment to CMS.”

That’s bad news, because “this could mean that enrollees have much less time to appropriately investigate potential overpayment situations [which will] present a heavy administrative burden on them,” Wink, Taebel and Nucci warn. “Moreover, failing to comply with this reduced timeline could result in a violation of not only the 60-day overpayment rule, but the FCA as well,” they add.

Do this: Submit comments on the rule by Feb. 13. Commenting instructions are in the 298-page rule published in the Dec. 27 Federal Register at www.govinfo.gov/content/ pkg/FR-2022- 12-27/pdf/2022-26956.pdf.