HEALTH REFORM: The Clock Is Ticking: CMS Issues a Proposed Rule on Reporting and Returning Overpayments

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On February 16, 2012,almost two years after the passage of the Patient Protection and Affordable Care Act (the "ACA"), the Centers for Medicare & Medicaid Services ("CMS") issued a proposed rule ("Proposed Rule") regarding overpayments to providers and suppliers, as provided for under Section 6402(a) of the ACA and codified at Section 1128J(d) of the Social Security Act (the "Act"). Specifically, Section 6402(a) states that "[i]f a person has received an overpayment, the person shall (A) report and return the overpayment to the Secretary, the State, an intermediary, a carrier, or a contractor, as appropriate, at the correct address; and (B) notify the Secretary, the State, intermediary, carrier, or contractor to whom the overpayment was returned in writing of the reason for the overpayment."

Until now, regulators, courts, clients, and members of the bar have taken different positions on Section 6402(a). The Proposed Rule provides CMS's view on this matter, and, given that CMS is proposing a number of potentially onerous requirements with regard to investigating, reporting, and returning overpayments, stakeholders should consider submitting comments to the Proposed Rule, which are due no later than 5 p.m. on April 16, 2012.

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