Overpayment rule is based on bad assumptions, expert says

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Robert L. Roth, attorney
Robert L. Roth, attorney
Regulators have severely underestimated added costs that would result under a proposed rule requiring the prompt return of self-detected reimbursement overpayments, according to at least one expert.

Administrative time and costs would be much more than the Centers for Medicare & Medicaid Services estimates, said attorney Robert L. Roth during a Bloomberg/BNA webcast last month.

Under the rule, providers would have 60 days to give back Medicare Part A or Part B overpayments after discovering them. If they don't make the deadline, they could face prosecution under the federal False Claims Act. Providers would be responsible for maintaining vigilance over a 10-year look-back period.

If promulgated, the rule would “create intense time pressure for providers and will significantly increase the operational — and potentially financial — burdens of overpayment disclosure,” said Roth, an attorney with Hooper, Lundy & Bookman PC in Washington.

The rule supposes that an overpayment problem should take an average of two and a half hours to resolve, a figure that Roth called “completely unrealistic.”

The government's forecasted implementation costs, as well as the tab for attorneys and billing experts, seem to be low, he added.

Also, tying the rule in with the False Claims Act is inappropriate, he believes, because the FCA is intended for “intentional” fraud, not “simple” payment errors. Each infraction would be subject to a possible $11,000 fine.

It is not known what would happen if a provider could not quantify a known overpayment within the 60-day window.
Comments were accepted on the rule until April 16.
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