Just before the New Year, the Centers for Medicare and Medicaid Services (CMS) unexpectedly issued a proposed rule to amend existing regulations for Medicare Parts A, B, C, and D that would materially change the obligations of participating entities to report and return overpayments (the Proposed Rule).1
The Proposed Rule would modify the “identified overpayment” definition in the current Medicare regulations to align it with the False Claims Act (FCA) “knowingly” standard. CMS originally proposed this definition in 2012. The Proposed Rule also suggests removing the “exercise of reasonable diligence” language from 42 CFR § 401.305(a)(2), 42 CFR § 422.326(c) and 42 CFR § 423.360(c) and replacing that language with the “knowingly” standard from the FCA.2
Currently, Part A and Part B providers and suppliers3 have time to conduct “reasonable diligence” prior to determining that an overpayment has occurred and to identify the amount of that overpayment. Only after completing such an investigation does the 60-day clock start on returning the overpayment to CMS. The Proposed Rule, however, would require Part A and Part B providers and suppliers to report and return overpayments within 60 days of that provider or supplier having actual knowledge, or being in reckless disregard or deliberate knowledge, of the existence of the overpayment. In short, there will no longer be a sufficient period of time to investigate whether a suspected overpayment has occurred. Instead, a provider...
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