On February 12, 2016, the critically important and long-awaited regulations implementing the Affordable Care Act's requirement that overpayments generally must be returned within 60 days of identification were published in the Federal Register. Arent Fox will be publishing an Alert analyzing the regulations in depth next week – in the meantime, and prior to the holiday weekend, we wanted to highlight some of the more significant aspects of the rule.
The final regulations contain several provisions that provide significant benefits, since "identification" is now defined to give providers time to investigate and quantify any overpayment before the 60-day period starts to run. In addition, while the proposed regulations had suggested a 10-year look-back period, the final regulations limit the look-back period to six years. (Note, however, that numerous commenters had suggested that the look-back period should be no longer than the 4-year period used in the reopening rules and certain other related provisions.) Further, the final regulations provide somewhat greater flexibility in the methodology that can be used to return any identified overpayments.
However, the preamble to the final regulations repeatedly emphasizes that providers and suppliers must take proactive, as well as reactive, measures to identify and return overpayments. It will not be sufficient to return the overpayments identified in a probe sample only; it likely will be necessary to expand the audit to make sure all related overpayments have been identified.
The regulations and preamble are lengthy and contain numerous examples that may be of interest to our clients, so, as noted above, we will publish a more in-depth analysis in an Alert next week.