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“Workshop on PRRB Practice Issues” March 16, 2005

American Health Lawyers Association Institutes on Medicare and Medicaid Payment Issues Baltimore, Maryland. “Workshop on PRRB Practice Issues” March 16, 2005. Medicare Appeals Developments. Moderator Paul Crofton, Director, Division of Hearings and Decisions, Office of Hearings, CMS

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“Workshop on PRRB Practice Issues” March 16, 2005

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  1. American HealthLawyers AssociationInstitutes onMedicare and Medicaid Payment Issues Baltimore, Maryland “Workshop on PRRB Practice Issues” March 16, 2005

  2. Medicare Appeals Developments • Moderator • Paul Crofton, Director, Division of Hearings and Decisions, Office of Hearings, CMS • Speakers • Bernard M. Talbert, Esq., Associate General Counsel, Blue Cross Blue Shield Association • Ellen V. Weissman, Esq., Hodgson Russ LLP

  3. Significant Changes between Proposed Regulations & Existing PRRB practice • Deadlines • Sanctions and Cures for filing dismissal • Reinstatement • Hearing Rights/Self-Disallowed Costs • Adding Issues

  4. Calculating Time Periods/Deadlines(42 CFR 405.1801(d)) • Current Regulation: No single definition • Proposed Regulation: 42 CFR 405.1801(d) • Adds Definitions • Adds general rules on counting, such as • What is the first day/last day • Due Dates falling on holidays/weekends • Excludes days FI is closed due to “Extraordinary Circumstances”

  5. Deadline for Filing Appeal from NPR(42 CFR 405.1801 and 405.1835) • Statute: Must file w/in 180 days after “notice” of Intermediary determination. SSA 1878(a) • What is “notice” of FI Determination? • Currently = Date mailed to Provider (42 CFR 405.1841(a)) • Proposed = “Date of receipt by a party;” Presumed 5 days after FI “issues,” unless establish actual later date. • “Issues” = postmark date (69 FR 35719)

  6. Deadline for Filing Appeal from NPR(42 CFR 405.1801 and 405.1835) • Lessons - Ask clients to: • Save all envelopes from reviewing entities to prove postmark date, and • Date stamp actual date of receipt.

  7. Deadline for Filing Appeal from NPR (42 CFR 405.1801 and 405.1835) • Statute: Must “file” w/in 180 days after notice of Intermediary determination. SSA 1878(a) • Current Regulation: Filing = Mailing • Proposed Regulation: Filing = Received • Cannot use email or fax • Lesson: Certified mail has no guarantee of date of receipt. Use courier service producing evidence of date of receipt.

  8. Request for Hearing • Proposed Rules: • Eliminate Preliminary Position Paper and move requirements to Request for Hearing • Require more information, including documents to prove jurisdiction • Lessons • Ask clients to review NPRs early • Work with clients to identify issues and documents • Can’t wait until 180th day to mail.

  9. Good Cause Exception for Late Filing (42 CFR 405.1836) • Current Regulation: Not defined. Split in circuits over authority of PRRB to grant, given statutory time bar. • Proposed Regulation: Defines “Good Cause” • Extraordinary Circumstances beyond provider’s control (e.g. natural catastrophe or strike) • Not Good Cause: Change in law, rule, CMS Ruling, Manual • Must demonstrate good cause within “reasonable period of time;” Barred after 3 years from NPR • Denial not appealable to court (like reopening) • Lesson: File on Time

  10. Expedited Judicial Review (EJR) (SSA 1878(f); 42 CFR 405.1842) • Statute: Board must act w/in 30 days of a request; if doesn’t, Provider can file in court • Current Rule: Time for Board to act begins to run after finding jurisdiction • Proposed Rule: Time to act runs from both • Finding Jurisdiction and • Notifying Provider request is “complete” • Comment: Potentially giant loophole, defeating statutory purpose of expedited review.

  11. Position Papers (42 CFR 405.1853) • Current Rule: File w/in 60 days after file Request for Hearing! (Not enforced) • Proposed Rule: • Deadlines set in Critical Due Date Notice • Extension of Time to File for “Good Cause” • “Good Cause” not defined (No reference to .1841) • Not clear if must file before due date? • Any change from current case law? (Currently, human error no excuse.)

  12. Sanctions for Missing Deadlines (New 42 CFR 405.1868) • Provider Sanctions: • Dismiss case (Appealable) • Order to show cause why not dismiss case • Other remedial action • Intermediary Sanctions: • Report to CMS Administrator • Cannot reverse/modify FI or CMS determination • Cannot rule against FI on disputed issue (fact/law) • Preamble: Board may decide case on Provider’s papers; Inconsistent with proposed rule?

  13. Reinstatement after Dismissal for Failure to meet Deadlines • Current Rule: None; Treated as “Reopening” • Case Law: Almost impossible to reinstate • Cases: Human error by Provider or Designated Rep no excuse for missing deadlines • Proposed Rule: None. • PRRB Instructions: Part I, XIII.b. • Draft PRRB Instructions: Draft Rule 19

  14. Lessons for Providers • Don’t miss deadlines! • Calendar all due dates with “alarms” • Notify more than one person of due date • If change Designated Representative, notify Board (and prior Representative) • Board corresponds only with Designated Rep

  15. Reinstatement after SettlementWhen FI Has Not Paid • Current and Proposed Rule: None • Current PRRB Instructions (Pt I,XIII.a): • Can reinstate w/in 180 days (pro forma) • Runs from date of PRRB notice case is withdrawn • Draft PRRB Instructions (Rule 19): • Must make motion • Within 3 years

  16. Lessons for Providers • After settle, calendar date to reinstate • Notify Provider of due date to reinstate • Reinstate if FI fails to meet settlement terms or fails to complete w/in time to reinstate • Example: DSH audits • FI fails to complete audit within 180 days • Reinstate if risk FI won’t issue revised NPR

  17. Right to AppealSelf-Disallowed Costs(42 CFR 405.1835(a)) • Proposed Rule: • Cannot appeal self-disallowed cost unless • Include claim on cost report as protested item • Major change from current law • Bethesda • Athens I and II

  18. Adding Issues(42 CFR 405.1835(c)) • Current Rule: • Can add issue as of right • Can add any time until hearing • Proposed Rule: • Board must approve request to add • Board must receive request w/in 60 days after Request for Hearing is due (180 days from NPR) • Major change. Previously, could learn from other appeals, add issue and move to group appeal

  19. Lessons (Adding Issues) • Get NPR and Audit Adjustment Report early • Identify all issues and file with Request for Hearing, if possible • If pressed for time; review after filing and add issues shortly after • Review pending cases and add issues now • In case proposed rule is adopted.

  20. Reopening: Proposed Rule(42 CFR 405.1885) • Deadlines • For Providers – Reviewing Entity must receive w/in 3 years; Lesson: Calendar Due Date. • For Reviewing Entity - must mail w/in 3 years • While PRRB appeal is pending: • Currently: Provider may bar reopening by FI of issue appealed to PRRB • Proposed: FI or CMS could reopen any issue, even one appealed

  21. Post-Appeal AuditsProposed Rule Changes • Self–Disallowed Costs (42 CFR 405.1803(d)) • If Provider wins on appeal, proposed rule would allow CMS to direct FI to audit costs • Other Costs - 69 Fed Reg. at 35742 • Preamble includes additional proposal • To allow FI to audit other costs not audited if Provider wins on appeal. • Example: FI thought appeal not timely filed, and had not, therefore, audited the costs

  22. Pre-Hearing Conference • Now the norm & not the exception • Always with a Board member • Forces the Intermediary and Provider to focus on case

  23. Alternatives to a Live Hearingin Baltimore • Telephone Hearing • Video Hearing • Record hearing • Mediation

  24. Alternatives to a Live Hearingin Baltimore • Telephone Hearing • 1-2 hours • One issue • Not documentation intensive • Witnesses from alternative telephone sites

  25. Alternatives to a Live Hearingin Baltimore • Video hearing • One side or the other via video • Witnesses via video

  26. Alternatives to a Live Hearingin Baltimore • Record Hearing • Usually limited to strictly legal issue(s) • Usually one issue • Not a documentation case

  27. Alternatives to a Live Hearingin Baltimore • Mediation • Proposed Board rules require both parties to address Mediation • Over 1000 cases mediated • 99% success ratio • If Intermediary agrees to mediate, it usually means a willingness to reverse/modify adjustments

  28. PRRB Inventory ReductionProject Summary • Intermediaries tasked to reduce appeals 50% • All time high cases of 13,907 in FY 2002 • Beginning Inventory 10/1/03-7475 cases • Ending Inventory 9/30/04-5421 cases • 20 of 30 Intermediaries met 50 % goal • FY 2005-744 new appeals filed cms.hhs.gov/providers/prrb/prrb.asp

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