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ADA comments on Medicare overpayment rule

Washington—A proposed health reform rule to require the return of Medicare overpayments within 60 days of their identification “will create unnecessary burdens on providers,” the Association told the Centers for Medicare & Medicaid Services.

CMS published the proposed 60-day overpayment rule in the Feb. 16, 2012 Federal Register and invited comments by April 16.

The regulation as proposed under the 2010 Affordable Care Act “does not make sense” in certain respects, the Association said, urging CMS to provide “clear guidance” to Medicare providers and suppliers on reporting and returning overpayments. The comments were signed by the Association’s top elected and staff officers and submitted electronically to http://regulations.gov.

The Association urged CMS to amend the proposed definition of “identify,” shorten the proposed 10-year look-back period and refrain from imposing affirmative duties on individuals who suspect kickback arrangements.

The proposed rule defined “identification” of an overpayment to include “reckless disregard or deliberate ignorance” as well as actual knowledge of the existence of an overpayment. “We believe defining ‘identification’ in this way gives providers and suppliers an incentive to exercise reasonable diligence to determine whether an overpayment exists,” CMS said. “Without such a definition, some providers and suppliers might avoid performing activities to determine whether an overpayment exists, such as self-audits, compliance checks and other additional research.”

“It does not make sense to impose a timed obligation to report and return overpayments on a person who has no actual knowledge of the overpayment’s existence,” the ADA comment said. “Moreover, it does not make sense to begin a 60-day period on an uncertain date based on ‘reckless disregard or deliberate ignorance,’ which is a legal conclusion that would follow an adjudication of the facts and not an event that a person could designate for purposes of calculating a reporting period.

“By defining ‘identify’ in this manner, the proposed rule would impose impossible compliance burdens because persons subject to the rule could not determine when the 60-day period commences and when the report and repayment are due,” the ADA said. “The requirement is vague and unworkable and persons subject to the rule will not be able to understand their compliance obligations.”

The Association also objected to a proposed regulation that “goes far beyond the statutory requirement by establishing an extraordinary ten-year look-back period for any kind of overpayment, including overpayments that are due to payer mistakes and overpayments resulting from routine errors. A ten-year look-back period,” the ADA said, “would impose a highly unreasonable burden on Medicare providers and suppliers.”

The CMS proposed rule Medicare Program: Reporting and Returning of Overpayments “would require providers and suppliers receiving funds under the Medicare program to report and return overpayments by the later of the date which is 60 days after the date on which the overpayment was identified; or any corresponding cost report is due, if applicable.”