CMS is moving ahead on its much-anticipated final rule implementing Affordable Care Act (ACA) requirements on reporting and returning of Medicare overpayments. Under the ACA, enrolled providers and suppliers (and certain other enrollees) receiving Medicare funds must report and return Medicare overpayments by the later of 60 days after the date on which the overpayment was identified or, if applicable, the date any corresponding cost report is due. On February 16, 2012, CMS published a proposed rule to clarify this statutory requirement, including what constitutes “identification” of an overpayment, the mechanics of returning an overpayment, and the period of time subject to repayment. A Reed Smith alert analyzing the proposed rule is available here.
Yesterday, CMS sent its final overpayment rule to the White House Office of Management and Budget (OMB) for regulatory clearance – the last step before publication in the Federal Register. While the text of the final rule is not yet available, CMS has previously cautioned “all stakeholders that even without a final regulation they are subject to the statutory requirements found in section 1128J(d) of the Act and could face potential False Claims Act liability, Civil Monetary Penalties Law liability, and exclusion from Federal health care programs for failure to report and return an overpayment.”