Key Takeaway: Proposed rule would increase providers' administrative burdens.Next Step: Comments on proposed rule due April 16.
By James Swann
A proposed rule from the Centers for Medicare & Medicaid Services that would require the return of Medicare overpayments within 60 days of their identification would dramatically increase administrative burdens for providers, an attorney said during an April 3 Bloomberg BNA webinar.
“If the proposed rule is finalized, it will create intense time pressure for providers and will significantly increase the operational--and potentially financial--burdens of overpayment disclosure,” Robert L. Roth, an attorney with Hooper, Lundy & Bookman PC in Washington, said during the webinar.
Potential penalties under the proposed rule include a $10,000 fine for each identified overpayment, as well as the possibility of Medicare exclusions.
“What do providers do when they can't quantify the overpayment amount within 60 days? The proposed rule is silent on this.”--Robert L. Roth, Hooper, Lundy & Bookman PC
“The proposed rule includes a 10-year look-back period [the time period for which providers are responsible for any identified overpayments], which CMS chose because it is the outer limit of the federal FCA statute of limitations,” Roth said. “The 10-year standard inappropriately links simple payment errors with the FCA liability standard, which is intended for intentional fraud.”
CMS published the proposed 60-day overpayment rule in the Feb. 16Federal Register, and comments are due April 16 (16 HFRA 135, 2/22/12).
Roth also said the proposed rule is silent on several topics, increasing uncertainty for providers.
“What do providers do when they can't quantify the overpayment amount within 60 days?” he asked. “The proposed rule is silent on this.”
The proposed rule also does not address potential retroactive enforcement issues created by the 10-year look-back period, Roth said.
Specifically, Roth said it would not be easy to collect documentation surrounding an old overpayment, as many providers have changed their data management systems over the years.
He said the proposed rule is also silent on whether the 60-day time frame applies to any overpayment identified prior to the enactment of PPACA.
“The language in the proposed rule says that, on average, it takes two-and-a-half hours to resolve an overpayment issue,” Roth said. “That seems completely unrealistic to me.”
He also said CMS's estimates of implementation costs do not appear to reflect the compliance reality providers would face, and that the proposed rule's cost estimates include only those of accountants and administrative staff, not those of attorneys and billing consultants.
The proposed rule is at http://www.gpo.gov/fdsys/pkg/FR-2012-02-16/pdf/2012-3642.pdf.
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