With regard to the commenters concern that as a result of this final rule CMS, other regulators, or qui tam relators may second-guess the provider and question whether the provider exercised reasonable diligence and made a reasonable inquiry with all deliberate speed, we note that it has long been true that many activities in the provision of health care, including billing the Medicare program, are subject to review by various stakeholders. We also proposed amending the reopening rules at 405.980(b) to provide that overpayments reported in accordance with 401.305 may be reopened for a period of 10 years to ensure consistency between the reopening regulations and 401.305(g). Yes, its offered through SOME Medicare Advantage plans but not all. Since the publication of the proposed rule, we have ceased using fiscal intermediary and carrier contracts, and accordingly we have removed these terms from the definition of Medicare contractor in the final rule. Comment: Commenters questioned how quantification of the overpayment fit into the proposed rule. However, we note that other statutes governed the disposition of overpayments prior to the enactment of the Affordable Care Act. This would allow providers and suppliers to use a reporting mechanism with which they are already familiar. Comment: Several commenters noted that section 1128J(d) of the Act has two separate provisions addressing overpayments and questioned whether the proposed rule conflated those provisions. of this final rule, are estimated between $120.87 million and $201.45 million. The federal government requires states to recoup specific medical costs mostly related to nursing home care from the estates of certain Medicaid beneficiaries after they die. How long will the Part B give remain in effect once it starts. Also, modifying retained does not eliminate the programmatic concern of the ostrich defensethat the plain mandate to report and return overpayments received would be avoided by not taking action to obtain actual knowledge of an overpayment. Commenters cited language from the March 25, 1998 proposed rule (63 FR 14506) as an indication that CMS allowed reconciliation to occur prior to the remaining overpayment amount being considered a debt. Comment: Several commenters questioned to whom within an organization CMS would attribute knowledge of the overpayment. Commenters requested that CMS provide compliance guidance on how to develop compliance plans and conduct self-audits for small providers and suppliers and recommended that this guidance be coordinated with the rulemaking related to sections 6102 and 6401 of the Affordable Care Act. We project an annual cost burden of between $120.87 million and $201.45 million. In the event that a SDP settlement is not reached, the provider or supplier has the balance of the 60-day time period remaining from identification to the suspension of that 60-day period when OIG acknowledged receiving the SDP submission to report and return any overpayment to the contractor. To receive an accelerated or advance payment during the COVID-19 PHE the provider or supplier must: 1. The public will have an opportunity to review the information collection and submit comments. Centers for Medicare & Medicaid Services (CMS), HHS. We received a number of comments regarding our proposed ICR estimates: Comment: Several commenters suggested that the burden analysis offered by CMS in the proposed rule was inadequate because it only considered two types of individuals involved in the reporting and returning of overpayments, accountants/auditors and in-house administrative personnel. You can also fill out our easy-to-follow online rate form today! Commenters stated that this standard would avoid confusion about when to report. More specifically, commenters questioned how this rule would apply to overpayments received prior to(1) March 23, 2010, the effective date of section 1128J(d) of the Act; and (2) the effective date of the final rule. The headline read, Seniors over 65 are getting huge benefits this year. However, the commenter appears to believe that the physician only has an obligation to report and return the overpayment if the upcoding was done deliberately. This position preserves our existing processes and preserves our ability to modify these processes or create new processes in the future. While every effort has been made to ensure that getty A friend forwarded me an ad he saw online. Comment: Commenters questioned the rule's effect on the hospice annual cap, the home health outlier revenue cap, and requests for anticipated payments (RAPs). Also, we are not aware of a similar MFCU process and, more importantly, Medicaid is not covered in this rulemaking. A separate final rule was published in the May 23, 2014 Federal Register (79 FR 29844) that addresses Medicare Parts C and D overpayments. If your modified adjusted gross income as reported on your IRS tax return from 2 years ago is above a certain amount, you'll pay the standard Part B premium and an income-related monthly adjustment amount. Overpayment means any funds that a person has received or retained under title XVIII of the Act to which the person, after applicable reconciliation, is not entitled under such title. (iii) A person requests an extended repayment schedule as defined in 401.603 and will remain suspended until such time as CMS or one of its contractors rejects the extended repayment schedule request or the provider or supplier fails to comply with the terms of the extended repayment schedule. The change is reflected in 401.305(f) of this final rule. Providers and suppliers that made a good faith effort to comply with section 1128J(d) of the Act by reporting self-referral overpayments to the SRDP, which, until now, has operated with a 4-year lookback period, are not expected to return overpayments from the fifth and sixth year through other means. 3729(b) also states that knowing and knowingly do not require proof of specific intent to defraud. Many commenters stated their support for many provisions and goals of the proposed rule. (e) CMS incurs procurement costs because of opposition to its recovery. Another commenter acknowledged the need for the reckless disregard/deliberate ignorance standard to deter evasive conduct and fraudulent concealment. Response: If a contractor or government audit discovers a potential overpayment, the audit notice from the contractor or government triggers the provider's or supplier's obligations under section 1128J(d) of the Act. It could be as little as $0.10, as much as $170.10, or any amount in between. Response: In the March 2005 interim final rule, we stated that we proposed the 5-year lookback period in an effort to accommodate overpayments identified by external auditors and law enforcement agencies where the external or law enforcement auditor used a 5-year sampling methodology, but the Medicare contractor was limited to a 4-year recovery period where there was no fraud determination. This does not include fringe benefits and overhead which are generally calculated as being 100% of salary. However, you will need to ensure the plan is available in your area as Medicare Advantage plans vary by ZIP Code. Below is a snap shot directly from Centers for Medicare and Medicaid about the current Part B premium scale. Remember, all plans are different, but it is possible that a plan with a Part B buy back option will have higher copayments and deductibles which may not matter to you if you dont spend a lot of time in the doctors office! Comment: Some commenters questioned under what circumstances a provider would anticipate an outlier reconciliation will be performed at the time of cost report settlement and requested that CMS clarify that outlier payments may be returned via the overpayment reporting process for claims. Therefore, the provider is not responsible to report and refund the overpayment until they have received the cap determination from their MAC. Overpayment was proposed to be defined as any funds that a person has received or retained under title XVIII of the Act to which the person, after applicable reconciliation, is not entitled under such title. Comment: A commenter requested confirmation that a provider or supplier may provide a single notification to the Department or its contractors to satisfy the report and return requirement and does not also need to use the SDP or SRDP. Reopenings of initial determinations, redeterminations, reconsiderations, hearings, and reviews. Commenters suggested that we provide clear guidance as to what actions a provider or supplier must take to avoid a determination that it is in reckless disregard or deliberate ignorance of the existence of an overpayment. This is sometimes confusing to many people, so bear with me. 205(a), 1102, 1861, 1862(a), 1869, 1871, 1874, 1881, and 1886(k) of the Social Security Act (, II. A current, more direct link: https://www.cms.gov/Outreach-and-Education/Medicare-Learning-Network-MLN/MLNGenInfo/index.html?redirect=/mlngeninfo. The provider must use the applicable reporting process for cost report overpayments (submit an amended cost report) along with the overpayment refund. Comment: Several commenters questioned whether providers and suppliers need to report and return Medicare secondary payer refunds under this final rule. Providers and suppliers should analyze the facts and circumstances present in their situation to determine whether they have credible information that a potential overpayment exists. There are many important factors to consider when choosing a Medicare Advantage plan. developer tools pages. We do not see any basis to exclude an overpayment from the requirements of section 1128J(d) of the Act because it may not have been caused by or was otherwise outside the control of the provider or supplier. of the February 2012 proposed rule (77 FR 9181), we also included certain examples of overpayments under this proposed definition as including all of the following: We also stated in the proposed rule that, in certain circumstances, Medicare makes estimated payments for services with the knowledge that a reconciliation of those payments to actual costs will be done when the actual costs or related information becomes available, usually at a later date. Receipt of Medicare payment when another payor had the primary responsibility for payment. Comment: Commenters noted that the proposed rule did not mention any changes to the cost report reopening period at 405.1885, which is 3 years. Response: Providers and suppliers are responsible for the actions of their agents, including third-party billing companies. However, as discussed in section II.C.4., the nature of the overpayment will affect a provider's or supplier's decision about the most appropriate mechanism and recipient of the overpayment report and refund. The receipt threshold obligation is consistent with both the initial standard for identification in the proposed rule and the standard for identification in this final rule. Although every ZIP Code has at least one Advantage plan available, there is no guarantee that it provides the Medicare Give Back Benefit. St. Louis, MO 63179-0355. I replied. Comment: A commenter appreciated the clarification in the proposed rule that the statutory definition of person, for purposes of reporting and returning overpayments, does not include beneficiaries and encouraged CMS to finalize the proposed definition. The Medicare contractor would then review the report to determine whether an overpayment existed, at which time the returning obligation requirement would be triggered. If Medicare payments equal or exceed the judgment or settlement amount, the recovery amount is the total judgment or settlement payment minus the total procurement costs. We note the process for identifying an overpayment requires a person to exercise reasonable diligence in determining whether an overpayment was received and to quantify the overpayment amount with a reasonable degree of certainty. (ii) CMS acknowledges receipt of a submission to the CMS Voluntary Self-Referral Disclosure Protocol and will remain suspended until such time as a settlement agreement is entered, the person withdraws from the CMS Voluntary Self-Referral Disclosure Protocol, or the person is removed from the CMS Voluntary Self-Referral Disclosure Protocol. These commenters stated that the preamble language suggests that providers and suppliers have a perpetual duty to research whether any overpayment may exist, which would be overly burdensome and not consistent with the requirements of section 1128J(d) of the Act. for better understanding how a document is structured but The final rule provides guidance for reporting overpayments identified through such statistical methods. However, not all Advantage plans offer this benefit. Comment: Some commenters stated that the concept of overpayment is not fair in some situations. For instance, if a supplier was paid $40 for a claim when it should have received $30, the commenters questioned whether the overpayment amount is $10 and not the entire $40 amount paid. But it can happen. We understand that a common way to conduct an audit is to use a probe sample and then incorporate that probe sample into a larger full sample as the basis for determining an extrapolated overpayment amount. Commenters stated that an alternative period would lead to unnecessary confusion and inconsistencies in light of existing expectations of liability for a 10-year lookback period. For the time prior to March 23, 2010, while providers and suppliers had an existing Start Printed Page 7674obligation to return overpayments, the specific obligations contained in section 1128J(d) of the Act are not retroactive prior to March 23, 2010. The general rule is that if a senior applies for Medicaid, is deemed otherwise eligible but is found to have gifted assets within the five-year look-back period, then they will be disqualified from receiving benefits for a certain number of months. 30:4D -53 et seq. A total of 8 months (6 months for timely investigation and 2 months for reporting and returning) is a reasonable amount of time, absent extraordinary circumstances affecting the provider, supplier, or their community. Comment: Several commenters believed that the 10-year lookback period was appropriate. Give Back: It's Like Getting a Monthly Rebate. What other benefits does the plan provide that are important to you, such as prescription drug coverage. (See the November 12, 2008 final rule (73 FR 67075).) Can Overseas Property Help Limit Your U.S. Tax Liability? The final rule clarifies that failure to conduct reasonable diligence does not by itself create liability under section 1128J(d) of the Act. Once you pay the full amount due listed on your bill, Medicare Easy Pay will start back up again. Either of these communications from OIG serves as the acknowledgement of receipt for purposes of this final rule. [2] And, if there is no plan in your area, you may hear about other plans that are available to you. Commenters frequently posed these questions in conjunction with objecting to the proposed 10-year lookback period. We stated that our proposed definition captures the different contractors that would be involved in receiving reports of overpayments as well as handling the return of overpayments, consistent with the statutory requirement. Comment: Several commenters stated that CMS(1) underestimated the administrative burden imposed by this rule; and (2) failed to adequately support the assumptions underlying the regulatory impact analysis. Commenters requested that we clarify whether this interpretation was accurate. We expect providers and suppliers to exercise reasonable diligence and to quantify, report, and return the entire overpayment in good faith. Claims that include items and services resulting from a violation of this law are not payable and constitute false or fraudulent claims for purposes of the FCA. ++ In paragraph (a)(2), we revised the requirements for reporting and returning of overpayments slightly to remove the terms actual knowledge, reckless disregard, and deliberate ignorance and to state that a person has identified an overpayment when the person has or should have through the exercise of reasonable diligence determined that the person has received an overpayment and quantified the amount of the overpayment. Providers and suppliers need to take reasonable steps to determine whether they have received overpayments and are required to return any funds received or retained under title XVIII of the Act to which they, after applicable reconciliation, are not entitled under such title. These commenters generally justified a 3-year period because the Medicare and Medicaid RACs are limited to 3 years in their audits. Commenters noted that the proposed rule may conflate these two, separate obligations in proposed 42 CFR 401.305(a)(1), which stated that if a person has identified that it has received an overpayment, the person must report and return the overpayment in the form and manner set forth in 42 CFR 401.305. Comment: Several commenters agreed with the proposed rule's definition of identification. These commenters stated that it also acknowledges that in some circumstances providers and suppliers may need more time to commence an inquiry. Secs. In both Part A and B, claims adjustments include an adjustment reason code on the claim. Its essential to compare Medicare Advantage and Medigap plans before enrolling in either option. Response: We agree with commenters and amended the final rule accordingly in 401.305(d)(1) by allowing for additional processes beyond the voluntary refund process.