The much-anticipated proposed rule regarding the 60-day repayment of overpayment obligation was issued in proposed form by the Center for Medicare and Medicaid Services on February 16, 2012 (77 Fed. Reg. 9,179). If left unchanged, the proposed rule would substantially increase the burdens on providers and suppliers. Most notably,the proposed rule would create a new 10-year look-back period for overpayments. In addition, the proposed rule would create little certainty by establishing a deliberate ignorance or reckless disregard standard for conducting a reasonable investigation into allegations of potential overpayments and includes preamble language suggesting a new standard of "all deliberate speed" on internal investigations into potential overpayments. The proposed rule signifies a move toward more formality and standardization of the existing overpayment reporting process.
The proposed rule aims to define the parameters and process for reporting overpayments to CMS and its contractors utilizing an existing process for self-reporting overpayments through Medicare contractors. The proposed rule establishes new standards for repayments of overpayments but only for Medicare Part A and Part B providers and suppliers. CMS states that standards for Medicare Advantage, Prescription Drug Plans, and Medicaid MCOs will be addressed at a later date. Nevertheless, CMS cautions that the 60-day repayment obligation is effective even without implementing regulations.