Health Care Reform Client Alert Series: CMS Issues Proposed Regulations on Liability for Failure to Disclose and Return “Identified” Payments in 60 Days

Overview

In May 2010, K&L Gates LLP published a client alert regarding the new statutory provision entitled “Reporting and Returning Overpayments” (“Overpayment Statute”) issued under the Patient Protection and Affordable Care Act of 2010 (“PPACA”). Click here to view that alert. On February 16, 2012, the Centers for Medicare and Medicaid Services (“CMS”) released proposed regulations clarifying key concepts in the new disclosure/repayment requirement which is the topic of this alert. While the regulations are proposed, CMS emphasizes that the overpayment obligation under PPACA is currently in effect.

The Overpayment Statute requires a provider, supplier, Medicaid managed care organization (Medicaid MCO), Medicare Advantage organization (MAOs), or prescription drug plan sponsor (PDP) who has received any overpayment (“Recipient”) to report and return such overpayment no later than 60 days after “identifying” the overpayment or the due date for any corresponding cost report, if applicable. An overpayment is defined to be any Medicare or Medicaid fund that a Recipient improperly received or retains after an applicable reconciliation.