CMS Issues Final Rule on Medicare Overpayments

Docs have to look back six years, not 10

The original version of the Centers for Medicare and Medicaid Services’ (CMS) overpayments rule required physicians to sift through 10 years of claims to make sure Medicare had not overpaid them, but now a final rule, released on February 11, requires that docs look back only six years. “Specifying the length and other parameters of the lookback period provides additional clarity for providers and suppliers who have identified an overpayment,” the agency said.

The new rule also clarifies what the CMS means when it gives providers 60 days to report an overpayment and to refund the money to Medicare.

Once a physician receives notification that he or she may have billed Medicare incorrectly, “there’s an obligation to decide if that call gives you what CMS calls ‘credible information’ of a potential overpayment, and if it does, then the provider should exercise reasonable diligence to look into it and determine whether in fact they have received an overpayment and how much that overpayment is,” Tony Maida, a New York City lawyer, told MedPage Today.

“And once you go through that reasonable diligence process ... at that point, the 60 days to report and return [the overpayment] starts to run,” he said. “Now if you get the hotline call and you don’t do anything, CMS says, ‘Well, you failed to exercise reasonable diligence and you may be violating this rule.’”

On the whole, the new rule is a positive development, Maida said. “You’d find some lawyers who’d say they would just as soon not have the regulation and let the courts decide what the overpayment requirement was from [the federal] statute, [but] my feeling is having a regulation is better than no regulation, because a regulation provides some guideposts and benchmarks” that physicians can use to stay in compliance with the law.

Wander Filer, MD, MBA, president of the American Academy of Family Physicians, isn’t so happy. “Six years is better than 10 years, but not as good as three years, which is what we would prefer,” she said. “Maybe once [the CMS has] got the learning curve established on six years, maybe three years may become more palatable.” The academy suggested a three-year lookback in a letter sent to the CMS in April 2012, after the proposed rule was published.

Sources: MedPage Today; February 11, 2016; and Federal Register; February 12, 2016.