CMS Proposes 10-Year Review for Provider Overpayments

Linking the 10-year lookback to the False Claims Act isn't necessary, Gennett says, because most overbillings have no criminal intent.

"[Ten years] would be under the worst case scenario under the False Claims Act when in fact most of the time when there is some kind of billing error it is just that—an error. It is not a knowingly false claim," he says.

While the CMS proposal is alarming, Gennett says it shouldn't come as a complete surprise.

"The political environment we are in right now is one where the federal government is taking all kinds of measures to combat fraud and abuse in healthcare with the idea that we are going to save money," he says. "Most government agencies have taken a fairly aggressive stand and this would be an example of that."

The American Hospital Association and the American Medical Association also are drafting letters to CMS that will detail their opposition to the proposed rule.

"The AHA believes that hospitals need a workable solution to return overpayments.  Unfortunately, the proposal will create new and unnecessary burdens and risks for hospitals, burdens and risks that go well beyond what Congress intended," AHA said in a statement.

"We are particularly concerned with the extraordinary expansion of a look back provision to 10 years and, what appears to be, an effort to effectively expand the reach of the False Claims Act beyond what Congress understood was necessary when it amended that statute to address overpayments in 2009."