60-day overpayment reporting final rule – the rule of six: part ii
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60-Day Overpayment Final Rule: Part II
March 29, 2016
PolsinelliReimbursement Institute
Bragg Hemmebhemme@polsinelli.com
Joan Killgore jkillgore@polsinelli.com
Kelly Schulzkschulz@polsinelli.com
Roadmap
Welcome to the Polsinelli Reimbursement Institute Brief Recap of the Final Rule Impact of the Final Rule on:– Transactions– Fraud and Abuse Analyses– Investigations and Audit– Overpayments Related to Cost Reports– Other Payers
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RECAP OF THE OVERPAYMENTS RULE
Brief History
Final Rule (Feb. 12, 2016)
Effective Date: March 14, 2016
• Overpayments under Medicare Parts A and B must be reported and returned within 60 days of identification or the date any corresponding cost report is due.
• An overpayment is “identified” when a provider or supplier has or should have, through the exercise of reasonable diligence, determined that it has received an overpayment and quantified the amount of the overpayment.
• Refund overpayments identified “within six years of the date” overpayment was received
Claims-Based Overpayments
Start Here if N
ot
Quantified
Start Here if Quantified
IMPACT ON TRANSACTIONS
Impact on Transactions
For purposes of CMS - repayment obligation follows the provider agreement– Transaction document(s) – assignment of
liability/indemnification Issues identified during pre-March 16, 2016 audits,
but not yet repaid– Need to go back as appropriate
Have to hit the ground running post-close– Implement updated audit procedures and processes – Assembling resources
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IMPACT ON FRAUD AND ABUSE ANALYSES
Stark Law SRDP Submissions
SRDP Submission prior to March 14, 2016– Business as usual – no need to resubmit
SRDP Submission on or after March 14, 2016– Subject to 6 year lookback, BUT… “CMS is only
authorized under the Paperwork Reduction Act to collect financial analysis of overpayments that occurred during a 4-year time frame”
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Stark Law SRDP Submissions
SRDP Submission prior to March 14, 2016– Business as usual – no need to resubmit– 60 day period is tolled
SRDP Submission on or after March 14, 2016– Subject to 6 year lookback, BUT… “CMS is only authorized under
the Paperwork Reduction Act to collect financial analysis of overpayments that occurred during a 4-year time frame”
Centers for Medicare & Medicaid Services Voluntary Self-Referral Disclosure Protocol, Frequently Asked Questions (updated March 16, 2016)https://www.cms.gov/medicare/fraud-and-abuse/physicianselfreferral/downloads/faqsphyselfref.pdf
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Stark Law SRDP Submissions
SRDP Submissions on or after March 14, 2016 are subject to 6 year lookback, BUT…– Until the OMB approves revised 6 year collection,
providers and suppliers submitting to the SRDP have no duty to provide financial information beyond the 4 year authorized time frame.
– Until notification of changes to the SRDP, providers and suppliers submitting to the SRDP may voluntarily provide financial information from the fifth and sixth years.
Once disclosure is submitted – 60 day repayment period is tolled
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Anti-Kickback Review
Lookback period 6 years Reporting to DOJ or OIG– Once disclosure is submitted – 60 day repayment
period is tolled Reporting to CMS?– Report overpayment to CMS, CMS forwards to
the OIG, and 60 day repayment obligation is suspended until kickback matter is resolved
Innocent bystander?
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IMPACT ON INVESTIGATIONS AND AUDITS
The Rule Overpayment must be reported and returned
within 60 days after the date on which “identified”– “Identified” an overpayment when have, or should
have through exercise of reasonable diligence, determined there was an overpayment and quantified the amount
– “Reasonable Diligence” includes• Proactive compliance activities (like routine internal audits)• Reactive compliance activities (like investigations)
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Proactive Diligence Requirements
Robust and appropriate compliance program– More than just policies on paper– Buy-in from top of the organization– Effective training– Clear lines of communication / reporting– Qualified compliance officer
Audit protocols– Plans for what is being audited internally each year– Include audits of your compliance program – is it working?
Risk Assessments
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Reactive Diligence Requirements
Reactive diligence based upon– Credible evidence– Identification and quantification– Report and return
Baseline: 6 months, followed by 60 days to repay
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Credible Evidence
When are you on notice of need to investigate?– Subpoena– Audit request– Internal audit / monitoring (proactive reactive)– Internal / external reporting (hotline, etc.)
Will be a factual determination
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Scope of Investigation
Fact dependent Scope of investigation– Have template plans / protocols ready– Know your internal resources– Review past concerns and understand when you
may need outside resources to assist (consultants, auditors, attorneys)
– Identify your look back period (is it 6 years?) Certain investigations may need to be conducted under
the attorney-client privilege
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What can you do now to prepare?
Ensure compliance structure, including procedures for identifying and investigating issues, is in place
Ensure audits and risk assessments performed
Know who will be investigating and identify internal and outside resources you may need to use
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OVERPAYMENTS RELATED TO COST REPORTS
Cost Report Overpayments
Where interim payments are made based on estimated costs, an overpayment is not deemed to exist until applicable reconciliation
Applicable reconciliation occurs and refunds due when:– The cost report is filed (initial or amended),– If related to updated SSI ratios from CMS, the final reconciliation
of the cost report,– If part of an outlier reconciliation, the final reconciliation of the
cost report If issue identified in audit with respect to one cost report, it is
“credible evidence” of a potential overpayment on other cost reports within the 6 year look back
Cost Report Overpayments
No change in reopening rules, but given timing in getting an NPR (3-4 years) and subsequent 3-year reopening period, 6 year look back period likely covered
Examples:– Overpayment discovered during preparation of cost report
Reconcile and refund when cost report submitted– Overpayment discovered prior to NPR Submit amended
cost report and refund– Overpayments discovered after NPR Seek reopening to
amend and refund
IMPACT ON OTHER PAYERS
Other Payers
Final Rule applies only to Medicare Parts A & B What is lookback period for other payer???– Medicare Advantage Organizations– Medicaid FFS– Medicaid MCO
Considerations:– Application of ACA – Contracted Status– State Law– Operational/Administrative Burden
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