CMS said in the proposed rule that a 10-year lookback period would make it consistent with the False Claims Act statute of limitations and that the proposal is "appropriate for several reasons."
"First, we believe that providers and suppliers should have certainty after a reasonable period that they can close their books and not have ongoing liability associated with overpayment," CMS said. "We also believe that the length of the lookback period is long enough to sufficiently further our interest in ensuring that overpayments are timely returned to the Medicare Trust Funds."
Nordeng says CMS is a little too zealous. "To the extent where they are trying to find actual false claims where there was knowing intent to submit a false claim, they would still have that 10 years. But to attach that 10 years to the overpayment as well seems like overkill," she says.
Michael Gennett, of counsel at Miami-based Akerman Senterfitt Law Firm, told HealthLeaders Media he is urging his clients to voice their concerns during the public comment period.
"When we let our clients know there is a comment period for a proposed rule, usually I don't expect that somebody is going to take the time to shape the rule. But this is one that especially hospitals will want to weigh in on," he says. "The 10 years has a monetary impact obviously as far as how much you may have to return. But there's a practical impact of trying to go through records that go back that far. Most people may not have those records on site."