The Centers for Medicare and Medicaid Services ("CMS") has issued a proposed rule which would amend the existing regulations for reporting and returning identified overpayments (the "Proposed Rule"). Specifically, with respect to the meaning of "identification" of overpayment, CMS proposes to eliminate the "reasonable diligence" (or traditional negligence) standard and replace it with the False Claims Act's ("FCA's") standard of "knowing" and "knowingly" (i.e., reckless disregard or deliberate ignorance of a potential overpayment).
Under the current Overpayment Rule, a person who has received an overpayment must report and return it within 60 days of discovery to the Secretary, the State, an intermediary, a carrier, or a contractor, as appropriate, and must also notify that entity in writing of the reason for the overpayment. As currently written, the Overpayment Rule...
