CMS Writes: Overpayment Rule Applies Despite Tardy NCD and LCD Implementation

http://www.discoveriesinhealthpolicy.com/2019/01/very-brief-blog-reviewing-aca-rules-on.html

https://www.govinfo.gov/content/pkg/FR-2016-02-12/pdf/2016-02789.pdf

81 FR 7956-7 (February 12, 2016)

Comment:

A number of commenters requested that overpayments not caused by the provider or supplier or that were otherwise outside of the provider or supplier’s control should be excluded from our proposed definition of overpayment.

Examples of this situation offered by commenters included—
(1) a CMS system error classifying a Medicare beneficiary as fee-for-service when the beneficiary was enrolled in a MA Plan; or
(2) if the Medicare contractor makes a duplicate payment,
pays for a noncovered service due to a contractor system edit problem, or
fails to implement a national or local coverage decision correctly, resulting in an erroneous payment.

Response: 

We disagree with the commenters that certain types of payments, including those made as a result of an error by any particular party, should be excluded from the definition of an overpayment.

We do not see any basis to exclude an overpayment from the requirements of section 1128J(d) of the Act because it may not have been caused by or was otherwise outside the control of the provider or supplier.

The plain language of section 1128J(d)(1) of the Act states that providers and suppliers are obligated to report and return any overpayment that they have received within the specified statutory timeframes.

We do not believe it is necessary for providers or suppliers to make determinations regarding whether they were the cause of an overpayment in lieu of reporting and returning any identified overpayments as required by this rule.

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CMS also states, on the following page, that not only are repayments due, after a carrier payment error interpreting an NCD, but also, CMS may issue clarifications that in some "circumstances" clarify that a past payment should now be viewed as an overpayment.  Adding that, overpayments are usually charged based on the effective date of a policy.

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