Reporting and Repayment of Medicare and Medicaid Overpayments Must Be Made by May 22, 2010 Under Section 6402(a) of the Patient Protection and Affordable Care Act

President Obama signed the Patient Protection and Affordable Care Act ("PPACA") on March 23, 2010. Thus, the clock started running on one of the most urgent requirements imposed by that Act -- that Medicare and Medicaid overpayments be "reported and returned" within 60 days after they are "identified." PPACA §6402(a). This new requirement, which is but one aspect of the program integrity provisions in section 6402(a), applies to providers, suppliers, Medicaid managed care organizations, Medicare Advantage organizations, and PDP sponsors, and requires the return of any "funds that a person receives or retains under [Medicare] or [Medicaid] to which the person, after "corresponding" reconciliation, is not entitled…."

Because the obligation to report and return overpayments became effective upon enactment, overpayments that were "identified" on or before the effective date (March 23, 2010) must be reported and returned by May 22, 2010. The new law does not define, and thus leaves open for interpretation, the term "identified." Overpayments that are subject to a "reconciliation process" need not be reported and returned within 60 days, but must be reported and returned by the due date of the "corresponding" cost report.

Note that under the new statute, merely returning the overpayment is not all that is required. The new statute, which is to be codified at 42 U.S.C. §1320a-7j(d), requires a person that has received an overpayment to:

1. report and return the overpayment to the Secretary, the State, an intermediary, a carrier, or a contractor, as appropriate, at the correct address; and
2. notify the Secretary, State, intermediary, carrier, or contractor to whom the overpayment was returned in writing of the reason for the overpayment.

Accordingly, reporting the reason for the overpayment is also required.

The failure to timely report and return any Medicare and Medicaid overpayment can have severe consequences, including potential liability under the False Claims Act, as well as the imposition of civil monetary penalties and exclusion from the Medicare and Medicaid programs. PPACA §§6402(d)(2), and 6502.

If you have any questions regarding this new requirement, please contact Bob Roth, or any other member of our Health Care Group. Look for future alerts to address the other provisions of the PPACA, including the additional program integrity provisions.