The much-anticipated proposed rule regarding the 60-day repayment of overpayment obligation was issued in proposed form by the Center for Medicare and Medicaid Services on February 16, 2012 (77 Fed. Reg. 9,179) [PDF]. If left unchanged, the proposed rule would substantially increase the burdens on providers and suppliers. Most notably, the proposed rule would create a new 10-year look-back period for overpayments. In addition, the proposed rule would create little certainty by establishing a deliberate ignorance or reckless disregard standard for conducting a reasonable investigation into allegations of potential overpayments and includes preamble language suggesting a new standard of "all deliberate speed" on internal investigations into potential overpayments. The proposed rule signifies a move toward more formality and standardization of the existing overpayment reporting process. Providers should carefully examine this proposed rule with an eye toward areas for comment prior to the April 16, 2012 close of the comment period.

Section 6402(a) of the Affordable Care Act established a new Section 1128J(d) in the Social Security Act entitled "Reporting and Returning Overpayments." Section 1128J(d) specifically requires a person who has received an overpayment to report and return the overpayment to the Secretary, State or other relevant contractor along with a written explanation of the reason for the overpayment.