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CMS Delays “60-Day” Overpayment Final Rule: Centers for Medicare and Medicaid Services

On Februrary 16th, the U.S. Department of Health & Human Services, Centers for Medicare & Medicaid Services (CMS) announced a delay in publication of the final rule on reporting and returning overpayments (a/k/a the 60-Day Rule). The rule implements Section 1128J(d)(2) of the Affordable Care Act, which requires hospitals and providers to report and refund overpayments within 60 days from the date the overpayment is identified or the date the corresponding cost report is due.

CMS is required to publish notice in the Federal Register if there are exceptional circumstances that cause it to publish a final rule more than three years after the publication date of the proposed rule. CMS reported that in this case, the complexity of the rule and scope of comments warrant the extension of the timeline for publication.

The proposed rule, which was published on February 16, 2012, defined when an overpayment is “identified” and provided a ten-year look-back period, both of which were concerning for providers. 

In its notice, CMS advised that significant policy and operational issues need to be resolved in order to address all of the issues raised by the comments to the proposed rule. CMS also acknowledged that the final rule requires collaboration among the U.S. Department of Health & Human Services, Office of the Inspector General and the Department of Justice.

The announcement extends the deadline for the final rule until February 16, 2016. However, the announcement also reminded stakeholders that even without a final rule, providers are subject to statutory requirements of Section 1128J(d)(2), i.e., the requirement to report and return overpayments is effective, and providers could face liability under the False Claims Act, Civil Monetary Penalties Law, or lead to exclusion from Federal health care programs for failure to report and return an overpayment.

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About this Author

von Briesen & Roper’s Health Law Section provides comprehensive legal services to the health care industry nationwide as both general counsel and special project counsel. Our clients include integrated delivery systems, academic medical centers, community hospitals, Catholic-sponsored hospitals, rural and critical access hospitals, imaging centers, physicians and multi-specialty clinics, specialty hospitals, ancillary suppliers, home health agencies, nursing homes, hospices, assisted living facilities, mental health and AODA facilities, DME suppliers, laboratories,...