CMS Delays Finalizing Overpayment Regulations; But, Providers Still Must Return Medicare Overpayments Despite The Lack of Regulations

Section 1128J(d) of the Social Security Act (the “Act”) requires providers and suppliers who have received an overpayment from the Federal health care programs to report and return the overpayment within 60 days of identifying the overpayment or by the date any corresponding cost report is due, whichever is later. The Centers for Medicare and Medicaid Services (“CMS”) published a proposed rule on this statute way back in February 2012. Over three years later, CMS has not finalized the overpayment regulations for Medicare Parts A and B.

The Act requires notice to be provided in the Federal Register if there are exceptional circumstances that cause new regulations to be finalized more than three years after publishing the proposed rule. Therefore, in February 2015, CMS published a notice extending the deadline for CMS to finalize the regulations until February 16, 2016. The “exceptional circumstances” CMS cites in the notice are “the significant policy and operational issues that need to be resolved in order to address all of the issues raised by the comments to the proposed rule and to ensure appropriate coordination with other government agencies.” The extension may indicate that the Medicare Parts A and B overpayment regulations will not closely mirror the regulations already published for Medicare Advantage and Medicare Part D overpayments. Additionally, the emphasis on a need for “coordination with other government agencies” may signal that the interested agencies (CMS, the DOJ, and the OIG) disagree on significant aspects of the final regulations.

For now, the most important takeaway from the notice is that “even without a final regulation [stakeholders] 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.” In short, we will have to wait to see how restrictive the Medicare Parts A and B overpayment regulations will be and for clarification on issues such as when an overpayment is said to be “identified.” But, for now, we know that the government will not hold back on enforcing the overpayment statute already on the books.

For more information, please contact Adrienne Dresevic, Esq., at adresevic@thehlp.com or (248) 996-8510 or (212) 734-0128.