Returning Medicare Overpayments Under the 60-Day Rule

On February 12, 2016, the Centers for Medicare & Medicaid Services for HHS (“CMS”) issued a final rule that clarified the obligations of Medicare providers and suppliers to report and return overpayments within 60 days (the “Rule”). The Rule becomes effective on March 14, 2016. The Rule, which applies only to Medicare Part A and B providers and suppliers, enforces a statutory requirement from 2010 implemented by the Affordable Care Act (“ACA”). Under the ACA, overpayments must be returned within 60 days of being “identified.” or providers and suppliers will face potential False Claims Act (“FCA”) or criminal liability. Two years after the ACA passed, CMS issued a proposed rule to clarify the 60-day requirement and received approximately 200 public comments in response. The proposed rule stated that an overpayment was “identified” when a person had actual knowledge or acted in reckless disregard or deliberate ignorance of the overpayment. Although the rule remained in draft form, in August 2015, a U.S. District Court in New York released the first ever decision finding FCA liability when a provider was put on notice of the overpayment. The Rule now, however, provides much clearer guidance on how and when to return Medicare overpayments.


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