On February 16, 2012, the Centers for Medicare & Medicaid Services (“CMS”) published a proposed rule requiring Medicare providers and suppliers to report and return overpayments (“Proposed Rule”). The Proposed Rule implements Section 6402(a) of the Patient Protection and Affordable Care Act (“Act”) dealing with reporting and returning overpayments. The Act requires that an overpayment be reported and returned by the later of: (1) the date which is 60 days after the date on which the overpayment is identified, or (2) the date any corresponding cost report is due, if applicable. Section 6402(a) also provides that any overpayment retained after that deadline is an “obligation” that may cause the provider or supplier to be liable under the False Claims Act (“FCA”).
The Proposed Rule only applies to Medicare Part A and Part B overpayments. It addresses three critical questions left unanswered by the Act: (1) when an overpayment is “identified”; (2) what procedures apply to report and return overpayments; and (3) how far back identified overpayments should be reported and returned (the “look back period”).
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