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February 17, 2012

On February 16, 2012, the Department of Health and Human Services released a proposed regulation covering the Reporting and Returning of Overpayments. The proposed regulation implements a key provision from the Affordable Care Act that was passed in March of 2010.


The proposed regulation requires that any provider or supplier who has received an overpayment to report and return the overpayment to the federal government within sixty (60) days of identifying the overpayment. Examples of overpayments include: (i) payments for noncovered services; (ii) duplicate payments; (iii) payments in excess of allowable amounts for covered services; and (iv) payments when a payor other than the federal government had primary payment responsibility.


The proposed regulation clarifies the government's interpretation of the term "identify." The proposed regulation states that an overpayment is "identified" if the person has either actual knowledge of the existence of the overpayment or acts with reckless disregard or deliberate ignorance of the existence of the overpayment.


The mechanism for reporting an overpayment incorporates existing procedures and forms. The report must be made in writing and contain specifically identified information, including the person's name, how the matter was discovered, the reason for the overpayment, the date of service and a description of the corrective action plan to ensure that the error does not happen again. The report and funds returned will be sent to the local Medicare contractor; in Massachusetts the contractor is NHIC, Corporation. The reporting obligations created by this proposed regulation may also be satisfied by making a self-disclosure under the Office of Inspector General's Self-Disclosure Protocol.


Any overpayment identified within ten (10) years of the date on which the overpayment was received must be reported and returned.


Public comments will be accepted for sixty (60) days following official publication of the proposed regulation in the Federal Register.

Health Law Group

Mirick O'Connell

100 Front Street

Worcester, MA  01608

t 508.791.8500

f 508.791.8502


1800 West Park Drive, Suite 400

Westborough, MA  01581

t 508.898.1501

f 508.898.1502


This client alert is intended to inform you of developments in the law and to provide information of general interest.   It is not intended to constitute legal advice regarding a client's specific legal issues and should not be relied upon as such.  This client alert may be considered advertising under the rules of the Massachusetts Supreme Judicial Court.