Issue link: http://viewer.e-digitaledition.com/i/63214
THE 60-DAY RULE: Reporting and Returning Medicare Overpayments By Joy D. Kosiewicz T HE AFFORDABLE CARE Act requires that a Medicare overpayment be returned by the later of the date which is 60 days after the date on which the overpayment was identified, or the date any corresponding cost report is due. The "60-day rule" raised many questions about when the clock starts ticking to return an overpayment. Do we have time to investigate a potential overpayment? Should we investigate a potential overpayment? How far back do we have to look? The proposed rule attempts to provide guidance on these questions. Under the proposed rule, an overpayment is "identi- fied" if a person has actual knowledge of the existence of an overpayment or acts in reckless disregard or deliberate ignorance of an overpayment. There are three key triggers to keep in mind: (1) actual knowledge, (2) reckless disregard or deliberate ignorance, and (3) reasonable inquiry. Yes, in some cases, you do have time to investigate, but don't delay. Once a provider/supplier has actual knowledge of an overpayment the 60 days starts to run. In some cases, if a pro- vider/supplier obtains information of a potential overpayment, the proposed rule would permit the provider/supplier to make a reasonable inquiry into whether an actual overpayment exists. Examples include, when a provider/supplier obtains information of a potential overpayment from its compliance hotline or a government agency and when a provider/supplier experiences a significant unexpected increase in Medicare revenue. The 60 days does not start to run until the investigation reveals an actual overpayment. However, CMS cautions that the investigation must be taken "with all deliberate speed." Yes, you must investigate. Failure to make a reasonable inquiry may be considered reckless disregard or deliberate ignorance which will start the clock ticking. The proposed rule still leaves some uncertainty. It does not address when the clock starts running if you identify an overpayment but further investigation is needed to determine the extent of the overpayment. Also uncertain is whether you need to return amounts you have actual knowledge of within 60 days even if your investigation into the total amount takes longer. 10-year look back period. The proposed rule would apply to overpayments identified within 10 years of the date the overpay- ment was received. The intent is to mirror the False Claims Act (FCA) statute of limitations. There has been a lot of discussion around this, including how this will affect the current Medicare reopening rules for contractors. Do not postpone action until the proposed rule is final. The statutory requirement for returning overpayments within 60 days is already effective and failure to comply with the statute can result in violations of the FCA and Civil Monetary Penalties Law and be grounds for exclusion. Check your policies to make sure you have procedures in place to timely investigate and return overpayments in compliance with the 60-day rule. Joy Kosiewicz is an attorney at Brouse McDowell in Akron and a partner in the Health Care Practice Group. s 42 | Cleveland-Akron-Canton MD NEWS s MDNEWS.COM s MAY-JUNE 2012