In limbo with underwhelming pay proposal

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James M. Berklan, McKnight's Editor
James M. Berklan, McKnight's Editor

First, it was the U.S. Supreme Court's turn to leave providers in suspense. Now, it's a group of decision-makers without robes who have operators holding their breath.

Tuesday was the final day for interested parties to submit comments on a proposed rule that would force providers to return Medicare Part A and B overpayments within 60 days of discovering them. This time it's the Centers for Medicare & Medicaid Services holding the gavel.

The agency is threatening to wield it like a sledgehammer, too. If the current proposal stands — which providers of many stripe pray doesn't happen — any caregiver that doesn't meet the 60-day deadline will be subject to fines of $11,000 for each infraction. In a clear case of overkill, the penalties would be pursued under the False Claims Act. The FCA is meant to prosecute those who conduct willful misconduct, not those who are accidentally given too much money through no fault of their own.

Another negative: Regulators have vastly underestimated the additional administrative time and costs the rule would foist upon providers. CMS failed to take into account the extra charges that added lawyer and consultant activity would generate.

Did I mention yet that providers would be responsible for any government overpayment miscues for the LAST 10 YEARS?

Proposals like these don't usually produce giggles. But how else can one react upon learning that regulators estimate that the average overpayment problem should take providers an average of just two and a half hours to resolve?

This is one instance when long-term care providers and hospital operators are clearly united: They both think the proposal will cause unintended administrative headaches, extra costs and liability nightmares.

CMS can issue a final rule at virtually any time now. But the agency would be wise to take plenty of time to review the comments it gets on this half-baked proposal. A decision should come long after the Supreme Court hands down its verdict on the Affordable Care Act, which is expected in June.

Besides, regulators still have to add the most important part: A way to make things right for all of the underpayments providers put up with.


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Daily Editors' Notes

McKnight's Daily Editors' Notes features commentary on the latest in long-term care news and issues. Entries are written by Editorial Director John O'Connor, Editor James M. Berklan, Senior Editor Elizabeth Newman and Staff Writer Marty Stempniak.