The Polsinelli Reimbursement Institute presents Part II of its series regarding the final Reporting and Returning Overpayments rule (a/k/a the 60-day rule) published on February 12, 2016. The webinar will cover the basics of the rule, but will go more in depth regarding the practical application of the rule for providers and suppliers. On our agenda: -The basics of the rule -The impacts of the rule on: --Transactions --Stark and AKS analysis --Investigations and audits --Other payers, such as Medicaid and Medicare Advantage Plans --Cost report-based overpayments

1. 60-Day Overpayment Final Rule:
Part II
March 29, 2016
Polsinelli
Reimbursement Institute
Bragg Hemme
bhemme@polsinelli.com
Joan Killgore
jkillgore@polsinelli.com
Kelly Schulz
kschulz@polsinelli.com

2. 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

3. WELCOME TO THE POLSINELLI
REIMBURSEMENT INSTITUTE

4. Reimbursement Institute
 Single source of news, information and guidance on
the constantly evolving reimbursement industry
– eAlerts
– Webinars
– News from D.C.
– Links to current guidance
– Advisors
 http://www.polsinelliri.com/

5. RECAP OF THE OVERPAYMENTS RULE

6. 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

7. Claims-Based Overpayments

8. IMPACT ON TRANSACTIONS

9. 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
9

10. IMPACT ON FRAUD AND ABUSE
ANALYSES

11. 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”
11

12. 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
12

13. 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
13

14. 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?
14

15. IMPACT ON INVESTIGATIONS AND
AUDITS

16. 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)
16

17. 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
17

18. Reactive Diligence Requirements
 Reactive diligence based upon
– Credible evidence
– Identification and quantification
– Report and return
 Baseline: 6 months, followed by 60 days to
repay
18

19. 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
19

20. 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
20

21. 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
21

22. OVERPAYMENTS RELATED TO COST
REPORTS

23. 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

24. 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

25. IMPACT ON OTHER PAYERS

26. 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

27. Contact Information
Polsinelli PC
www.polsinelli.com
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