At the DC Bar program “The Medicare Overpayments Final Rule: Government Perspectives and Compliance Considerations” (Mar. 29, 2016), a panel of speakers from the OIG, CMS, and private practice discussed perspectives on the final rule’s guidance about the return of identified Medicare Part A and B overpayments within 60 days, implications of the final rule for providers, and compliance considerations related to the return of overpayments.

Highlights of the discussion include:

• CMS believes that the final rule will provide clarification while maintaining flexibility that reflects common business practices, although it expects it will need to provide additional guidance as needed, both formally and through sub-regulatory guidance.  On the other hand, CMS expects that court decisions will also provide final clarification on some of the rule’s requirements.
• CMS means to permit refunds to be made through a variety of mechanisms, although when overpayments are made outside one of the formal self-disclosure programs,  providers should maintain documentation to show the timing and scope of their overpayment review, even if all of that information is not submitted with the refund, to support the approach taken.
• CMS deliberately did not specify a specific extrapolation method for refunds, although the entity receiving the refunds may raise questions about the approach, and certain protocols (e.g., the OIG self-disclosure protocol) have specific guidelines for statistical extrapolation.
• Currently, typical OIG CIAs include language stating that annual, probe audits that find error rates lower than 5% do not require a full sample review, although a provider may still have an obligation under the overpayments rule to make refunds beyond those identified in the probe sample.
• Certain self-disclosures made to the OIG that relate to improper retention of overpayments were discovered in the context of transactional due diligence, and the OIG will generally treat retention of an overpayment cases the same way as other OIG self-disclosures.
• There is no current plan to revise existing guidelines that govern when Medicare contractors will refer overpayment matters to OIG; accordingly, large refunds to the contractors may still end up in front of the OIG for resolution.
• All panelists agreed that providers will have the primary responsibility to monitor their business practices, especially through their compliance programs, and ensure compliance with the overpayments final rule.

More information about the Medicare final rule on overpayments, along with potential compliance considerations, is available in our briefing, CMS issues anticipated Medicare overpayments final rule; relaxes initial proposals  and our Law360 article, Compliance Concerns After CMS 60-Day Overpayment Rule.