CMS Clarifying Medicare Overpayment Rules: The Bar Is Raised (Yet Again) for Health Care Providers

Have you ever watched athletes compete in the high jump? Each time an athlete is successful in pole vaulting over the bar, the bar gets raised…again…and again…until the athlete can no longer vault over the bar. Similarly, the Center for Medicare and Medicaid Services (CMS) continue to raise the bar on health care providers who accept Medicare and Medicaid.

In February, CMS finalized the rule requiring providers to proactively investigate themselves and report any overpayments to CMS for Medicare Part A and B. (The Rule for Medicare Parts C and D were finalized in 2014, and the Rule for Medicaid has not yet been promulgated). The Rule makes it very clear that CMS expects providers and suppliers to enact robust self auditing policies.

We all know that the Affordable Care Act (ACA) was intended to be self-funding. Who is funding it? Doctors, psychiatrists, home care agencies, hospitals, long term care facilities, dentists…anyone who accepts Medicare and Medicaid. The self-funding portion of the ACA is strict; it is infallible, and its fraud, waste, and abuse (FWA) detection tools…oh, how wide that net is cast!

Subsection 1128J(d) was added to Section 6402 of the ACA, which requires that providers report overpayments to CMS “by the later of – (A) the date which is 60 days after the date on which the overpayment was identified; or (B) the date any corresponding cost report is due, if applicable.”

Identification of an overpayment is when the person has, or reasonably should have through the exercise of reasonable diligence, determined that the person received an overpayment. Overpayment includes referrals or those referrals that violate the Anti-Kickback statute.

CMS allows providers to extrapolate their findings, but what provider in their right mind would do so?

There is a six-year look back period, so you don’t have to report overpayments for claims older than six years.

You can get an extension of the 60-day deadline if:

• Office of Inspector General (OIG) acknowledges receipt of a submission to the OIG Self-Disclosure Protocol
• OIG acknowledges receipt of a submission to the OIG Voluntary Self-Referral Protocol
• Provider requests an extension under 42 CFR §401.603

My recommendation? Strap on your pole vaulting shoes and get to jumping!

About kemanuel

Medicare and Medicaid Regulatory Compliance Litigator

Posted on May 24, 2016, in Administrative Remedies, Affordable Care Act, Alleged Overpayment, Audits, CMS, Credible Allegations of Fraud, Dental Medicaid Providers, Doctors, Durable Medical Equipment, Extrapolations, False Claims Act, Federal Government, Federal Law, Final Rulings, Fraud, Gordon & Rees, Group Homes, HHS, Home Health Care Agencies, Home Health Services, Hospitals, Knicole Emanuel, Legal Analysis, Legal Remedies for Medicaid Providers, Legislation, Long Term Care Facilities, Medicaid, Medicaid Appeals, Medicaid Attorney, Medicaid Audits, Medicaid Fraud, Medicaid Providers, Medicare, Medicare Appeal Process, Medicare Attorney, Medicare Audits, North Carolina, Office of Administrative Hearings, Office of Inspector General, Office of Medicare Hearings and Appeals, Physicians, Psychiatrists, Regulatory Audits and tagged , , , , , , , , , , , , , , , , , , , , , . Bookmark the permalink. Leave a comment.

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