Annals of Health Law
READY OR NOT
quantifying the overpayment) might reasonably take longer than sixty
days.212 As such, the Proposed Rule extends some relief to providers from
an expectation that they complete the investigation, identify relevant claims,
and process a refund all within sixty days.
Rather, CMS proposes to stay the sixty-day clock (meaning, the point at
which the overpayment is “identified” per the statute) until the provider or
supplier has had a reasonable opportunity to investigate potential
overpayments.213 The Proposed Rule anticipates circumstances in which a
provider will receive information that creates an obligation to make a
reasonable inquiry to determine whether an overpayment exists. If that
inquiry uncovers an overpayment, the sixty-day “clock” begins to run such
that the provider then has sixty days to report and return the overpayment.
CMS is serious about providers carrying out their “reasonable inquiry”
obligation in earnest. Specifically, providers are expected to conduct their
inquiry “with all deliberate speed after obtaining the information.”214
Recalling the FCA’s definition of “knowledge” of an overpayment to
include acting in reckless disregard or deliberate ignorance of receipt of an
overpayment reinforces the “all deliberate speed” language holding
providers to a high standard of investigative diligence. As such, the
Proposed Rule establishes that providers act at their own peril if they do not
have adequate systems in place, such as internal audit programs, to timely
identify potential overpayments.215 These obligations would seem to
necessitate heightened levels of due diligence as a part of a rigorous
The proposed “self-reported overpayment refund process”216 introduces a
212. See generally OVERPAYMENT RULE, supra note 210.
213. Hewitt, supra note 211; see also Pitts & McCurdy, supra note 211.
214. See generally OVERPAYMENT RULE supra note 210.
215. See e.g. Thomas Hess & Tyler Williams, DINSMORE & SHOHL LLP, CMS Proposes
60 Day Repayment and Overpayment Regulations, DINSMORE & SHOHL LLP (Mar. 7, 2012),
available at http://www.jdsupra.com/post/documentViewer.aspx?fid=a563663d-ef12-4600-
b4db-d5c2ce907a0d; Thomas Beimers, CMS Releases Proposed Rule on PPACA’s 60 Day
Report and Repay Requirement, BEYOND HEALTH REFORM (Feb. 15, 2012), available at
ppaca%E2%80%99s-60-day-report-and-repay-requirement/. See infra Section VI.
216. See Hewitt, supra note 211; see Pitts & McCurdy, supra note 211. Under the
Proposed Rule, the existing voluntary refund process in Chapter 4 of the Medicare Financial
Management Manual will be renamed the “self-reported overpayment refund process.” This
is the process providers will use to effectuate refunds. CMS contemplates a standardized
form to be used for repayments, but does not have one yet. See Hess & Williams, supra note
215; see also Pitts & McCurdy, supra note 211. PPACA Section 6402 requires providers
who receive a Medicare or Medicaid overpayment to report and return the overpayment to
the program within 60 days of identifying the overpayment, or, for entities required to
submit cost reports, by the later due date of the applicable corresponding cost report. See
generally Beimers, supra note 215.