On February 11, 2016, the Centers for Medicare & Medicaid Services (CMS) published a final rule on the reporting and return of overpayments within 60 days, an obligation commonly known as the "60-day rule." The final CMS rule, which relates to Medicare Part A and Part B only, eases some of the requirements for healthcare providers and suppliers compared to what CMS originally proposed four years ago. Given that the failure to timely report an overpayment can lead to False Claims Act (FCA) exposure, the final rule has significant FCA implications for healthcare providers.
Under the "reverse false claim" provision of the FCA, 31 U.S.C. § 3729(a)(1)(G), liability can exist when a provider or supplier "knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the Government." An "obligation" includes the retention of any overpayment. The Affordable Care Act explicitly states that the 60-day rule is an "obligation" for purposes of the FCA.
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