Re: [CMS-6011-P] Medicare Program; Reporting and Repayment of Overpayments (67 Federal Register 3662). January 25, 2002.

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Tuesday, March 26th 2002

Thomas Scully
The Centers for Medicare & Medicaid Services
Hubert H. Humphrey Building, Room 443-G
200 Independence Avenue, SW
Washington, DC 20201

Dear Mr. Scully:

On behalf of our nearly 5,000 member hospitals, health care systems, networks, and other providers of care, the American Hospital Association (AHA) welcomes the opportunity to comment on the Centers for Medicare & Medicaid Services' (CMS) proposed rule on the obligation of providers and others to report and repay overpayments from the Medicare program.

AHA and its members agree in principle with the proposed regulation - overpayments by the Medicare program to providers and others should be returned to the government. The duty to report and return an overpayment within 60 days of its being identified may seem simple and reasonable, but several clarifications are needed to assure accurate implementation, especially about the 60-day time period. We therefore recommend the following:

Confirm that the 60-day period for repayment begins when the provider has determined the amount of the overpayment, if one has occurred. As written, the regulation could be interpreted to start the 60-day clock when a provider first becomes aware that an overpayment may have occurred. Sixty days will rarely be sufficient to do all that is necessary to investigate whether an overpayment has indeed been made and, if it has, to determine the extent of the overpayment.

The circumstances of an overpayment can vary significantly. Even when only one claim is involved, time will be needed to assess the guidance and the facts. In many instances, a potential overpayment will surface with one claim, but the circumstances will suggest that others may also have occurred. The greater the potential number of claims overpaid, the more complex the investigative process. In other instances, e.g., whether Medicare had primary or secondary liability, many of the facts, and ultimate control of the decision, will be outside the hands of the provider. Compliance efforts are likely to be a key source for the discovery of overpayments. Assuming that the rule intends for repayment to be made after a final determination of overpayment and of the amount to be repaid, a 60-day period would be sufficient to complete the notification and repayment process.

Clarify how the reporting and repayment process in this regulation affects already existing guidance and procedures for reporting and returning overpayments. A variety of processes already exist for reporting and repaying overpayments, e.g., submitting corrected claims, using the Medicare Credit Balance Report, and the OIG self-disclosure protocol. The proposed regulation is silent on the relationship between the new process and these current ones.

We also heard concern that mailing a check to the fiscal intermediary, as appears to be the suggested method for repayment, will not, under the current systems, necessarily result in the provider receiving credit for the payment. Another unanswered question: What are the accepted means for quantifying the amount of an overpayment? Again, there is existing guidance in the contractor manuals; how is that affected by this proposed rule?

The estimated time for notifying the government of an overpayment seriously understates the actual time that will be involved. The estimate that notice to the government can be accomplished in five minutes significantly understates the amount of time that actually will be required to fill in the form, especially the time required to develop the information necessary to complete the form. The rule should be revised to accurately reflect the commitment of time that will be required to comply with this regulation.

We appreciate the opportunity to comment on this proposal. If you have questions about these remarks, please feel free to contact me or Maureen D. Mudron, Washington counsel, at (202) 626-2301.


Rick Pollack
Executive Vice President


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