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CMS Issues Final Rule on the Reporting and Return of Medicare Overpayments

On February 12, 2016, the Centers for Medicare and Medicaid Services (CMS) issued a final rule titled “Medicare Program; Reporting and Returning Overpayments.”  This final rule would implement Section 6402(a) of the Affordable Care Act, which imposed a 60-day requirement on Medicare providers and suppliers to report and return overpayments.  The provisions of this final rule will go into effect on March 16, 2016.

The final rule implements changes that were first proposed as part of a February 16, 2012 proposed rule.  The final rule can be viewed in its entirety by clicking here.


Section 6402(a) of the Affordable Care Act requires health care providers and suppliers to report and return a Medicare overpayment within 60 days of the date such overpayment is “identified”.  Any overpayment not returned within this timeframe would become an “obligation” under the False Claims Act.  As a result, any ambulance service that is found to have knowingly retained an overpayment beyond the 60 day period could be subject to False Claims Act liability.  In addition, violations may also subject an ambulance company to civil monetary penalties and possible exclusion from the Medicare program.

Provisions of Proposed Rule

Definition of an “Overpayment”

In the final rule, CMS defined an overpayment as “any funds that a person has received or retained under title XVIII of the Act to which the person, after applicable reconciliation, is not entitled under such title.”  CMS noted that this definition is mirrors the definition of an overpayment that appeared in Section 6402(a) of the Affordable Care Act.
CMS cited examples of certain common overpayments in the proposed rule, including:

  • Payments for non-covered services;
  • Payments in excess of the applicable Medicare allowable
  • Errors and nonreimbursable expenditures included on a cost report;
  • Duplicate payments; and
  • Payment from Medicare when another payor had primary responsibility.

For ambulance providers and suppliers, another common area of overpayments would be payment for excessive mileage.

Note: in the final rule, CMS clarified that, in instances where the paid amount exceeds the appropriate payment to which a provider or supplier is entitled, the “overpayment” would be limited to the difference between the amount that was paid and the amount that should have been paid.  For example, if the overpayment was the result of a claim incorrectly being billed as an ALS emergency, rather than a BLS emergency, the overpayment is not the entire amount of Medicare’s payment.  Rather, the overpayment is limited to the difference in Medicare’s payment for the two base rates.

When an Overpayment has been “Identified”

In its proposed rule, CMS indicated that an overpayment would be “identified” if the ambulance provider or supplier: (1) had actual knowledge of the existence of the overpayment or (2) acted in reckless disregard or deliberate ignorance of the existence of the overpayment.  CMS indicated that this definition was intended to prevent providers and suppliers from deliberately avoiding activities that might uncover the existence of potential overpayments, such as self-audits and outside compliance checks.

CMS further stated its belief that the Proposed Rule would, in some instances, place an affirmative burden on providers and suppliers to investigate whether a potential overpayment exists.  Specifically, CMS indicated that “in some cases, a provider or supplier may receive information concerning a potential overpayment that creates an obligation to make a reasonable inquiry to determine whether an overpayment exists.”  If the provider or supplier then fails to reasonably inquire, it could be found to have acted with reckless disregard or deliberate ignorance.

In the final rule, CMS indicated that an overpayment will be deemed to have been identified to the extent “a person has, or should have through the exercise of reasonable diligence, determined that the person has received an overpayment and quantified the amount of the overpayment.”

Thus, the final rule makes two important changes to the standard of when an overpayment is identified.  The first change is to clarify that an overpayment has not been identified unless and until the provider or supplier is able to quantify the amount of the overpayment.

The second change was to remove the language related to “reckless disregard” and “deliberate ignorance”.  CMS replaced these terms with a standard of “reasonable diligence”.  Under the new standard, an overpayment is identified on the date you can actually quantify the size of the overpayment, or the date on which you would have been able to quantify the overpayment had you proceeded with reasonable diligence to investigate the possibility of an overpayment.  For these purposes, CMS indicated that reasonable diligence would be established to the extent you can demonstrate a timely, good faith investigation of any credible report of a possible overpayment.  Note: CMS indicated that an investigation should take no more than 6 months from the date of receipt of credible information, except in extraordinary circumstances.

To see the impact of these changes, consider the following scenario:

You receive an anonymous report on your compliance hotline that a recent change to your billing software has resulted in the mileage for all Medicare claims being rounded up to the next whole number (as opposed to being submitted with fractions of a mile).  Based on this report, you begin an investigation, and quickly come to the conclusion that the anonymous report is correct.  However, it requires an addition 4 months to review every claim submitted to Medicare since that software change, and to calculate the actual amounts you were overpaid.

Under the standard first proposed by CMS, it was unclear whether the 60-day clock to return over payment started on the day you confirmed the software problem, or whether you have time to look at your entire claims universe to calculate the actual amounts you were overpaid.  By contrast, under the standard set forth in the final rule, it is clear that the overpayment would not be “identified” until you can quantify the actual amounts you had been overpaid.  In the above example, you completed your investigation within 6 months, meaning you would have satisfied the new “reasonable diligence” standard.  Therefore, assuming you make a timely report and refund of the amounts you were overpaid, you would have no liability under the False Claims Act.

Situations in Which a Provider or Supplier would have a Duty to Inquire

In the proposed rule, CMS provided some examples of situations where a provider or supplier would be deemed to have received a credible information regarding a potential overpayment, including the following situations:

  • Where a review of billing records indicates that you were incorrectly paid a higher rate for certain services;
  • Where you learn that the patient died prior to the date of service on a claim that has been submitted for payment;
  • Where you discover that the services were provided by an unlicensed or excluded individual;
  • Where an internal audit discovers the presence of an overpayment.
  • Where you are informed by a government agency of an audit that discovered a potential overpayment, and where you fail to make a reasonable inquiry;

In the final rule, CMS confirmed its belief that official findings from a government agency (or its contractors) would constitute credible evidence of a potential overpayment, and would therefore trigger a provider’s or supplier’s obligation to conduct an investigation with reasonable diligence.  If the provider or supplier ultimately agrees with the Medicare contractor’s findings, it would qualify as having “identified” an overpayment, which would trigger the 60-day period for reporting and refunding that overpayment.  CMS further indicated that when the provider confirms the audit’s findings, the provider or supplier may be deemed to have credible evidence of additional overpayments (i.e., claims presenting the same issues, but which fall outside the contractor’s audit period) that may require further investigation.   CMS did agree, however, that where the provider or supplier elects to appeal the contractor’s findings, it would be reasonable to hold off on conducting an investigation into similar claims until such time as the overpayment identified by the Medicare contractor has worked its way through the administrative appeals process.

Counting 60-Day Period

In the final rule, CMS indicated that the 60-day period for reporting and returning the overpayment would start on the date the overpayment is first identified (i.e., the date the overpayment is first quantified following a reasonably diligent inquiry.  However, in the event a person fails to conduct a reasonably diligent inquiry, the 60-day period will be deemed to run from the date the provider or supplier first received a credible report of a possible overpayment (assuming the provider or supplier was, in fact, overpaid).

Process for Reporting Overpayments

In its February 2012 proposed rule, CMS had indicated that it would require ambulance providers and suppliers to report and return overpayments using the existing process for voluntary refunds.  At that time, CMS also proposed that the overpayment report contain 13 required elements, including a brief statement of the reason for the overpayment, and a description of the steps the provider or supplier intended to take to ensure that the same error would not occur again.  At the time, CMS further indicated that it would develop a uniform reporting form that would replace the various forms currently in use by its Medicare contractors.

In the final rule, CMS abandoned this formulaic approach to the reporting of overpayments.  Instead, CMS elected to permit providers or suppliers to use any of the following to report an overpayment:

  • An applicable claims adjustment;
  • Credit balance;
  • Self-Reported Refund; or
  • Any other reporting process set forth by the applicable Medicare contractor.

In addition to the processes currently used by Medicare contractors, providers or suppliers can also satisfy the reporting obligations of the final rule by making a disclosure under the OIG’s Self-Disclosure Protocol or the CMS Voluntary Self-Referral Disclosure Protocol.  Note: these processes are generally reserved for situations that involve something more than an isolated billing error.

When reporting an overpayment that was calculated using a statistical sampling methodology, CMS indicated that the provider or supplier must describe the actual process used to obtain a statistically valid sample, and the extrapolation methodology used.

Statute of Limitations

In the final rule, CMS adopted a 6-year “lookback period”.  CMS further clarified that this lookback period is measured from the date the provider or supplier identifies the overpayment.  As a result, an overpayment must be reported and returned only to the extent the overpayment is identified within 6 years of the date the overpayment was received.  Overpayments identified beyond the 6-year lookback period would not be subject to the new regulations.

The 6-year lookback period represents a substantial reduction from the 10-year lookback period originally proposed by CMS.  That 10-year period was intended to coincide with the outer limit of the statute of limitations for False Claims Act violations.  However, after considering comments from healthcare providers and suppliers, CMS agreed that a 6-year lookback period was more appropriate.  CMS noted that the change would significantly reduce the burden these new regulations imposed on providers and suppliers.

Change to Regulations Governing Reopenings

To facilitate the reporting and refunding of overpayments under these new regulations, CMS elected to revise its rules regarding reopenings.  CMS will now permit its Medicare Administrative Contractors (MACs) to reopen an initial determination (i.e., a paid claim) for the purpose of reporting and returning an overpayment.

While seemingly minor, this change is needed to ensure that Medicare’s payment files properly reflect that an overpayment has been refunded.  Otherwise, it would be possible for a claim that had previously been refunded to be selected by a Medicare auditor for postpayment review.  This could lead to the auditor attempting to recoup amounts that had previously been voluntarily refunded.

Question of a “Lifetime”

“Does Medicare still accept a lifetime signature for ambulance claims?”

As the AAA’s Medicare Consultant, I am frequently contacted by members seeking guidance on some of the more complicated aspects of Medicare billing. By a wide margin, the most common question we get is whether Medicare contractors will accept a so-called “lifetime signature.” Unfortunately, there is no easy answer to this question.

The Medicare regulations at 42 C.F.R. §424.36 provide that the beneficiary’s signature is required in order to authorize a healthcare provider to submit a claim to Medicare. The regulation then provides for two exceptions to that general rule. The first states that the beneficiary’s signature is not required if the beneficiary has died. The second states that, if the beneficiary is physically or mentally incapable of signing for themselves, the healthcare provider may obtain an alternative signature on the beneficiary’s behalf from one of the following individuals:

  1. The beneficiary’s legal guardian;
  2. A relative or any other person who receives social security or other governmental benefits on the beneficiary’s behalf;
  3. A relative or other person who arranges for the beneficiary’s treatment or exercises other responsibility for his or her affairs;
  4. A representative of an agency or institution that did not furnish the services for which payment is being claimed, but which did furnish other healthcare services or assistance to the beneficiary; or
  5. A representative of a Part A provider or nonparticipating hospital claiming payment for its services may sign for the beneficiary if, after making reasonable efforts, it is unable to locate or obtain a signature one any of the other authorized individuals referenced above. Note: this option is not available to Part B ambulance suppliers.

This regulation provides guidance on who may sign in order to permit a healthcare provider to submit a claim to Medicare. However, it does not speak to when that signature must be obtained. To answer that question, you must look to a separate regulation, 42 C.F.R. §424.40. That regulation sets forth the situations under which a request for payment (i.e., a patient’s signature) may be effective for more than one claim. Subpart (d) provides that a signed request for payment retained in a Part B supplier’s file may be effective indefinitely. It is this provision that ambulance suppliers have historically relied upon as justification for the use of a lifetime signature.

To understand how these provisions were intended to interact, it is helpful to keep in mind that the signature requirement applies to all Medicare claims, not only ambulance claims. This includes claims for services that can be provided on a non-assigned basis (e.g., physician claims). For these types of claims, the beneficiary’s signature is required to effectuate the assignment of benefits from the beneficiary to the healthcare provider, without which the healthcare provider would be limited to billing the beneficiary directly for its services. In other words, the beneficiary signature requirement was intended to perform a necessary administrative function.

However, in 2007 and 2008, CMS revised the beneficiary signature requirement for ambulance providers and suppliers. As part of these changes, CMS indicated that the beneficiary’s signature on a claim (or other documentation) served as proof that the ambulance services were actually rendered to the beneficiary. In other words, CMS clarified its belief that the beneficiary signature requirement performed a program integrity function.

This shift in CMS’ understanding of the purpose behind the beneficiary signature had far-reaching implications on the validity of the lifetime signature. When understood as a simple assignment mechanism, the lifetime signature is relatively non-controversial. After all, if the patient was willing to consent today to the submission of a claim to Medicare, why shouldn’t they also be able to consent to any future services rendered by that same healthcare provider? However, a patient’s signature obtained today would not establish that any future transports actually took place.

It is this shift in CMS’ stated position regarding the underlying purpose of the beneficiary signature requirement that has led a number of Medicare contractors to no longer accept a lifetime signature for ambulance transports. These contractors argue that a signature obtained prior to the actual date of transport cannot prove that the transport was actually provided. Frankly, I find it difficult to argue with their logic.

The problem is that, while CMS has announced its new position on the purpose of the beneficiary’s signature, it has yet to revise its regulations to specifically exclude ambulance providers and suppliers from relying upon a lifetime signature.

At some point, CMS will be forced to reconcile this apparent contradiction. In the meantime, ambulance providers and suppliers are forced to operate in something of a grey area. Operationally, the lifetime signature makes life a lot easier for our crews and billing office. However, relying upon the lifetime signature puts us at risk of having claims denied as part of an audit. The recent implementation of a prior authorization process for repetitive patients (currently in 8 states and the District of Columbia) has brought this issue to the forefront, as many ambulance services previously relied upon a lifetime signature for their dialysis and other repetitive patients.

So What Should You Do?

As a best practice, I strongly recommend that ambulance providers and suppliers instruct their crewmembers to attempt to obtain the patient’s actual signature or a valid alternative at the time of transport. Doing so should limit the situations in which the lifetime signature might come into play.

The question then becomes how to handle those claims where, for whatever reason, the crew was unable to obtain the patient’s signature or a valid alternative at the time of transport. In these situations, submitting the claim based on a previously obtained lifetime signature is an option. You will need to make a business decision on whether that option is the right one for your organization.

Some factors you should consider in making that decision:

  1. Has your Medicare Administrative Contractor indicated that it will no longer accept a lifetime signature for ambulance claims?
  2. Are you located in one of the states (or DC) where the MAC is currently operating a prior authorization process for repetitive patients? Are you currently under any other type of prepayment review?
  3. If claims are denied for lack of a valid patient signature, are you comfortable with potentially having to appeal all the way up to an Administrative Law Judge?

Depending on how you answer these questions, you may decide that the risks associated with relying upon the lifetime signature are too great. If so, whenever the crew fails to satisfy the patient signature requirement at the time of transport, and assuming you are otherwise unable to satisfy the new alternative for ambulance transports, you will need to send the patient a signature request form (and hold the claim until that request is returned).

So back to the original question: Does Medicare accept a lifetime signature for ambulance transport?
Answer: it depends on who you ask.

AAA members, do you have an issue you would like to see discussed in a future Talking Medicare blog post? Please write to me at

2016 AIF: A Step Backward

By Brian S. Werfel, AAA Medicare Consultant | Updated November 25, 2015

Each year, the Centers for Medicare and Medicaid Services (CMS) determine the following year’s Ambulance Inflation Factor (AIF), a figure that has deep revenue implications for ambulance services of all sizes. CMS recently announced that the 2016 AIF will be a disappointing – 0.4%.

In this inaugural edition of the Talking Medicare blog, I explore the ins and outs of the AIF, including the impact of the Multi-Factor Productivity Index on our industry’s Medicare payments.


First, some background. The Affordable Care Act revised the formula by which CMS calculates the annual adjustment to Medicare’s reimbursement rates for ambulance services. Prior to 2011, Medicare’s payment for ambulance services increased each year by an amount equal to the percentage increase in the consumer price index for all urban consumers (CPI-U) for the 12-month period ending in June of the previous year (i.e., for 2016, the 12-month period ending on June 30, 2015). Starting in 2011, the CPI-U increase is reduced by the so-called Multi-Factor Productivity Index (MFP).

What to Expect Next Year

For 2016, the change in the CPI-U was equal to 0.1%. In a transmittal issued November 17, 2015, CMS indicated that it estimates the MFP will be 0.5% next year. As a result, CMS calculated the Ambulance Inflation Factor (AIF) to be – 0.4% next year.

Yes, you read that correctly. Your Medicare reimbursement rates will decrease next year!

MFP’s Impact Over Time

The MFP represents a permanent reduction in the amounts paid by the Medicare Program for ambulance services. And, unlike other recent reimbursement hits our industry has faced, this reduction compounds itself over time.

What do I mean by that? Quite simply, I mean that the lower rates become part of the baseline against which the next year’s AIF is calculated. As a result, the gap between our industry’s costs of providing ambulance services and Medicare’s reimbursement for those services grows larger every year.

To give you a sense of the impact of MFP over time, this chart shows the payment of an ALS emergency transport in New York City over the past several years. In 2010, the Medicare allowable rate for this transport was $491.06. In 2016, the Medicare allowable rate for that same transport will be $517.02, an increase of 5.3%. However, without the MFP, the Medicare allowable would have been $544.22, or 10.8%. In other words, our Medicare increase would have been more than twice as much in the absence of the MFP.

Keep in mind that the AIF was created to ensure that Medicare reimbursement keeps pace with the increased costs of providing ambulance services to your community. By that yardstick, the current process for calculating the Ambulance Inflation Factor is clearly inadequate.

One of the key issues facing our industry is our ongoing fight for permanent Medicare ambulance relief. The recent AIF simply highlights the need for a better method of ensuring that Medicare’s payments keep pace with our costs.

Have an issue you would like to see discussed in a future blog post? Please write to

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Summary of CMS Ambulance Open Door Forum of November 5, 2015

By David M. Werfel, Esq. | Updated November 6, 2015

On November 5, 2015, the Centers for Medicare and Medicaid Services (CMS) conducted its latest Ambulance Open Door Forum.  As usual, CMS started with announcements, which were as follows:

As required under the Medicare Access and CHIP Reauthorization Act (HR 2), the pilot program for prior authorization for non-emergency repetitive patients will be expanded to Delaware, the District of Columbia, Maryland, North Carolina, Virginia and West Virginia, effective January 1, 2016.  A Special Open Door Forum on the topic will be held by CMS on November 10, 2015 from 12:30 to 1:30 pm. (Link to PDF).

Payment Policies

On October 30, CMS released the final rule on changes in CY 2016 to the Medicare ambulance fee schedule.  The final rule will be published in the Federal Register on November 16, 2015.  The rule finalizes the following:

  • The 2% urban, 3% rural and 22.6% super rural adjustments have been extended through December 31, 2017.
  • Urban/Rural Designations – CMS will continue in 2016 and thereafter with the current geographic designations of urban and rural that were implemented on January 1, 2015. CMS also stated the Agency is further reviewing those zip codes which are a RUCA 2 or 3 and have a portion that include a rural census tract.  The Agency will issue possible changes in a proposed rule.  This review was requested by the AAA and should result in more urban zip codes being designated as rural.
  • Vehicle/Staff – For Medicare purposes, a BLS vehicle must include at least a driver and an EMT-Basic.  However, the vehicle/staff must also meet all state and local rules.

ICD-10 – CMS published an ambulance crosswalk from ICD-9 codes to ICD-10 codes.  Also, the condition codes list is only a guide and using one of the codes does not guarantee coverage.

Meeting at the AAA

  • Rogers spoke at the AAA Workshop on Prior Authorization held at the AAA headquarters on October 2.  He thanked the AAA for inviting him as a speaker.
  • Rogers mentioned one of the issues he discussed at the AAA headquarters was the transportation of psychiatric patients. Dr. Rogers indicated that his opinion is that when patients are in a “psychiatric hold”, that the psychiatric hold, by itself, does not constitute Medicare coverage for an ambulance.  He indicated that coverage would exist if there was IV, EKG, medications administered, etc., but that possible elopement was not enough for coverage.  Dr. Rogers’s statement was his individual opinion.  The AAA does not agree with that opinion and we will be following up with Dr. Rogers and CMS on the matter.
  • Rogers stated another issue discussed at the AAA headquarters was on the proper level of service being determined at the time of dispatch. He stated that it was his opinion that Medicare should reimburse for the level of service dispatched.

Healthcare Marketplace – individuals can apply for health coverage through the marketplace from November 1, 2015 to January 31, 2016 through

Medicare Open Enrollment – CMS announced the Open Enrollment period has begun for Medicare beneficiaries to select their plan.

The question and answer period followed the announcements.  As usual, several resulted in the caller being asked to e-mail their question to CMS.  Questions concerning the prior authorization program were asked but the callers were told the questions would be answered on the Special Open Door Forum for prior authorization that will be held on November 10.  Answers to questions asked were as follows:

  • Medicare does not cover an ambulance transport of a psych patient, as the patient can be transported safely by other means, such as by law enforcement.
  • When physicians and facilities do not provide records needed for prior authorization, the ambulance provider may have to choose discontinuing transportation of that patient.
  • The denial rate for ICD-10 codes is the same as it was for ICD-9 codes.
  • No solution was offered for situations where the SNF uses 911 to call for an ambulance that they know is not needed.
  • When Medicaid pays and takes back its payment more than a year after the date of service, due to the patient receiving retroactive Medicare eligibility, Medicare can be billed.

No date was given for the next Ambulance Open Door Forum, other than the November 10 date for the Special Open Door Forum on the expansion of prior authorization.

Member Advisory: CMS Releases the ICD-10 Crosswalk

By Kathy Lester, JD, MPH | AAA Healthcare Regulatory Consultant | October 9, 2015

At the end of last week, CMS posted the ICD-10 crosswalks for medical conditions for ambulance services. The documents can be found here, under the Other Guidance section at the bottom of the webpage.

In creating the crosswalk files, CMS relied upon a program developed by 3M, ICD-10 CTT. The files provide comprehensive crosswalks for both primary and alternative specific codes and are intended to supplement the existing Medical Conditions List.

The AAA has been working with CMS for the past year to create an official document that addresses the medical condition codes upon which some of the Medicare contractors rely for billing and auditing purposes.

While we are pleased that CMS has recognized the need for a crosswalk, we are concerned that the documents posted are a literal crosswalk of the previous ICD-9 list. This document can also be found on the Ambulance Service Center webpage. This approach, which incorporates all potential ICD-10 codes, has resulted in a large number of codes being included in the crosswalk. Some of these codes are inappropriate to use because they require diagnostic skills that extend beyond the scope of ambulance personnel.

The AAA has developed a more streamlined list of condition codes that eliminates those codes that are inappropriate for ambulance services to use.

We continue to work with CMS to refine its crosswalk to ensure that it is useful to ambulance services throughout the country.

CMS Extends Ambulance Enrollment Moratoria

On July 25, 2015, CMS issued a notice extending the temporary moratorium for enrollment of new ambulance suppliers in the Texas counties of Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery and Waller, as well as in Philadelphia and the surrounding counties of Bucks, Delaware, Montgomery (Pennsylvania), Burlington, Camden and Gloucester (New Jersey). This notice will appear in the Federal Register on July 28, 2015.

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