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CMS Proposed Rules On Overpayment Self Disclosure

CMS To Publish Self Disclosure Proposed Rules Today

Just one day before Valentines Day, CMS released a long awaited proposed rule defining provider obligations to report Medicare and Medicaid overpayments within 60 days.  Section 6402 of the Patient and Program Protection Act created possible False Claims Act liability and possible program exclusion for the knowing concealment or avoidance of a repayment obligation.  The new proposed rule is intended to add definition to the general obligation that was included in the initial statutory provisions.  Section 6402 of PPACA requires providers to report and return over-payments within 60 days of identification.  The original statute broadly defined the provider obligations but did not provide specifics on several topics such as when an overpayment is deemed to be “identified” or how long providers were obligated to look back when identifying potential over-payments.

The Proposed Rule created an extremely onerous lookback period of ten years.  This menas that providers will be obligated to report overpayment obligations that they discover which date back as far as ten years from th date of discovery.  The actual disclosure rules are somewhat less oppresive than the self disclosure rules that were already in place with regard to the Anti-kickback Statute and the Stark Law.  Nevertheless, many aspects of the proposed regulations, and in particular the ten year lookback rule, are likely to generate comments from affected parties. The proposes rule should be officially published sometime today.

Health care attorneys and compliance officers should pay close attention to this one an consider responding to the proposed rules during the comment period.  Check the published rule for the comment deadline.  Contact me if you need any assistance.

About The Author

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John Fisher, JD, CHC  is a seasoned health care attorney and is certified in Health Care Compliance by the Health Care Compliance Association.  Mr. Fisher is available to assist physician groups and other health care providers nationwide in the development and operation of Compliance Programs.

Mr. Fisher has significant experience in the various legal and regulatory matters that are faced by physicians including the Stark Law, Anti-Kickback Statute and Safe Harbors, Medicare and Medicaid reimbursement rules, HIPAA, False Claims Act, antitrust laws, employment laws, contract matters, business ventures and laws governing financial relationships between physicians, and others.

Mr. Fisher practices with the Ruder Ware law firm in Wausau, Wisconsin.  His practice on compliance and Federal Law issues is nationwide.

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John H. Fisher

Health Care Counsel
Ruder Ware, L.L.S.C.
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