At the end of last year, the Centers for Medicare & Medicaid Services (CMS) proposed changes to the so-called 60-day repayment rule. The proposed changes include eliminating the current “reasonable diligence” standard that applies to providers in connection with potential liability for overpayments and replacing it with “actual knowledge” or “acting with reckless disregard.” The proposed changes can be located here.
The deadline for submission of comments was February 13, 2023. We are likely going to see substantial comments from the industry. The healthcare industry participants should carefully scrutinize the comments and proactively implement any relevant changes based on such comments in their compliance practices. In addition, regardless of whether or not the new changes will be implemented, most providers should not rely on existing knowledge standards as a replacement for proactive diligence and compliance. There is a risk that a decision not to engage in any proactive diligence may be seen as evidence of acting in reckless disregard.
The so-called “60-day Repayment Rule” requires the providers who submit claims to Medicare or Medicaid to report and repay any overpayments by the later of: (1) 60 days after the overpayment was identified; or (2) the date any corresponding cost report is due, if applicable.[1] The rule states that the “identification” of an overpayment occurs when the person has, or “should have, through the exercise of reasonable diligence,...
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