By: Karina Gonzalez
When providers or suppliers self-report overpayments to Medicare Part C Managed Care organization, there is some uncertainty on what lookback period applies and whether there actually is an overpayment obligation. Is it Medicare’s 60-day overpayment rule that applies or do the Managed Care Part C organizations impose a different lookback period for overpayments?
CMS (The Centers for Medicare & Medicaid Services) published its Final Rule clarifying the procedures applicable to the statutory requirement under the Affordable Care Act (“ACA”) for providers and suppliers to self-report and return overpayments. (The Final Rule was published on February 12, 2016). The Final Rule applies to Medicare Parts A and B and addresses the procedures that a provider or supplier need to follow to investigate, identify, quantify to self-report and return an overpayment. The Final Rule clarifies the obligations of Medicare providers and suppliers to report and return overpayments for claims originating only under Medicare Parts A and B. The final rule does not address, or reference, the obligations of providers to return overpayments to Medicare Advantage organizations for Part C claims.
The Final Rules is also known as the 60-Day Rule establishes a six-year lookback period for the investigation of potential overpayments and then a 60-day period thereafter to return the overpayment. The Rule gives specific guidance for reporting and returning self-identified overpayments.
However, there is no specific reference in the Final Rule to requirements for Medicare Parts C (and D). There appears to be an assumption that the Part A and B requirements apply to Part C. A provider is left guessing on whether it should apply the Medicare 6 year look back period in investigating a potential overpayment or some other time requirement, such as a contractual lookback period or a state law lookback requirement.
Therefore, on the one hand, all providers and suppliers have an obligation to report and return overpayments; but on the other hand, whether this obligation extends to overpayments owed to Medicare Advantage organizations is in question. Even if a provider or supplier could successfully argue against the application of the 60-day overpayment law, there most likely is an obligation to return Part C overpayments anyway.
The ACA also creates an obligation to return overpayments beyond what is required by the 60-day overpayment law. The ACA amended the Civil Monetary Penalties Law (“CMPL”) to subject to civil penalties, any person who knows of an overpayment and fails to report and return it. An argument can also be made that a provider or supplier may violate the FCA (False Claims Act), if it knowingly makes a false statement to avoid an obligation to pay money to the government. While Part C is administered by private Managed Care Organizations, the money is essentially Medicare dollars.
Until there is rulemaking applicable to Part C overpayments, to provide itself with a safety net, providers should comply with the 60-day overpayment law and its related regulations in self-reporting Part C overpayments. Overpayments for Medicare Part CFollowing the 60-day overpayment law provides a defense to challenges that may be brought against providers under these laws.