Murtha Means More

A Little Surprise in the Fiscal Cliff Legislation: Government Gets Five Years to Recover Medicare Overpayments

February 26, 2013

Remember the recent legislation that prevented us from going over the "fiscal cliff?" Tucked into that "fix" was a section that extends from three to five years the government's ability to recover Medicare overpayments. The OIG has complained that CMS is not recovering enough money from providers and has pointed to several statutory time limits as obstacles.


For example, the Social Security Act (the "Act") limits a Medicare recovery contractor to reopening a payment within four years after it was made. The Act's three year statute of limitations was intended to give providers assurance that after a certain date Medicare payments could not be recouped.  Another provision of the Act bars recovery from providers who are "without fault." Providers are deemed "without fault" three years after the year in which a payment was made. (This could actually turn into four years:  if payment was made on the first day of 2010, recovery could take place until the end of December 2013.) If the government claims you violated the False Claims Act it can look back ten years. There are also rules that limit when a filed Medicare cost report can be reopened.


The OIG sees these time limits as forcing the government to leave money on the table --- more than $400 million, according to a report recommending a longer look-back period.


Now that the reopening period has been extended, you can expect Medicare recovery contractors to routinely seek to reach back five years. If you already have a repayment in process, most observers believe the government will proceed under the three year time limits.


If you have questions about the issues addressed here or any other matters involving Health Care Law, please contact your usual Murtha Cullina attorney or Elizabeth Neuwirth at 203.772.7742 /

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