Proposed overpayment rule draws ire from American Urological Association

June 1, 2012

How would you like to have to go back for 10 years and figure out if the feds have overpaid you on a Medicare or Medicaid claim and then be required to pay up within 60 days or face monetary penalties and maybe get kicked out of federal health care programs? That's exactly what will happen unless a regulation proposed by the Centers for Medicare & Medicaid Services is significantly revised.

That's exactly what will happen unless a regulation proposed by the Centers for Medicare & Medicaid Services is significantly revised.

The rule, proposed in February by CMS as part of the Affordable Care Act (ACA), has drawn the wrath of physician and other medical groups across the nation, including the AUA, which submitted a detailed response on April 14.

The "lookback" provision Dr. Schlossberg referred to would require physicians to review their records to determine whether any overpayments were made.

Dr. Schlossberg said the AUA supports the proposed rule's requirement that overpayments should be reported and returned to the agency when a person "has actual knowledge of the existence of the overpayment" or "acts in disregard or deliberate ignorance of the existence of the overpayment."

However, he said, "Clarifications should be made to ensure that the overpayment regulations only permit government entities and contractors to target bad faith retentions of overpayments" in order to avoid imposition of liability in cases involving technical errors, innocent mistakes, or "mere negligence" in the handling of overpayments.

Dr. Schlossberg said the proposed rule provides insufficient guidance regarding when the 60-day time frame for reporting and reimbursement kicks in, and said it could be interpreted to be when the provider/supplier becomes aware of an overpayment but does not know the amount. He said the language should be clarified to state that the 60-day "clock" begins to run when there is knowledge not only of an overpayment but also the amount of the overpayment.

The AUA also urged CMS to clarify a requirement that upon receiving information concerning a potential overpayment, "failure to make a reasonable inquiry, including failure to conduct such an inquiry with all deliberate speed" could result in the provider/supplier being in violation of the False Claims Act.

"First and foremost, the AUA recommends that CMS clarify that a reasonable inquiry will only activate the 60-day clock when it reveals a calculated overpayment," Dr. Schlossberg wrote.