3/18/2013
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PRRB Appeals:Making the Process Work for You
American Health Lawyers AssociationInstitute on Medicare & Medicaid Payment Issues
March 20‐22, 2013
Lisa Sarris CowheyMelanie Marolf‐Fetchik
Lisa OgilvieStephanie Webster
Topics
• Will my case pass jurisdictional/procedural muster?
• What is a proper group appeal and how do I keep one on track?
• What is a MAC and how do I find mine?
• How do I keep my appeal from being sidelined by procedural snafus?
• Board Rules issued 3/1/2013—what are the most significant issues?
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Jurisdiction?
Jurisdictional/Procedural Requirements
● Dissatisfaction (effective for CRPs ending on or after 12/31/2008)
● claimed cost and audit adjustment; or
● protested item
● Revised NPRs
● only matters specifically revised are within the scope of an appeal (not within scope if “reopened but not revised”)
● 180 days from final determination (date of filing=date of receipt by Board for appeal filed on or after 8/21/08)
● $10K for individual; $50K for group (Board may allow multi‐year groups to meet this requirement)
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Jurisdiction?
Cost Report Protest Items and Ensuing Appeals
● Program manual instructions for cost report protest items (new Board Rule 7.2.C; Provider Reimbursement Manual, Part II, §§115, 3630.1)
● Identify each protested issue/self‐disallowed item
● State reimbursement impact for each issue
● PRM: “reasonable methodology which closely approximates the actual effect”
● Provide work papers showing calculation of impact
● PRM: contractor may “evaluate the reasonableness of the methodology for purposes of establishing whether the cost report is acceptable”
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Jurisdiction?
Cost Report Protest Items and Ensuing Appeals
● Other requirements for protested item appeals (new Board Rule 7.1)
● Concise issue statement
● Reimbursement impact
● Authority “that predetermined that the claim would be disallowed”
● Cost report protested item page(s) (new Board Rule 21.D.2requirement for group Schedule of Providers)
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Jurisdiction?
Revised NPR appeal documentation requirements (Board Rule 7.1)
● Revised NPR under appeal
● NPR immediately preceding revised NPR under appeal
● Reopening request that preceded the revised NPR (if applicable)
● Reopening notice issued by the MAC
● Revised NPR workpapers for the issues under appeal
● Any applicable cost report worksheets
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Jurisdiction?
Jurisdictional Trends
● Audit adjustment/claimed item (DSH, FTEs)
● Protest item (self‐disallowed vs. unclaimed item)
● Revised NPRs
● Identifying and appealing the issue (e.g., DSH, prior/penultimate year)
● Equitable tolling
● Board “own motion” review
● Timing of jurisdictional objections and responses (Board Rule 44.4)
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Group Appeals
One “Common” Issue
● Single question of fact or interpretation of law, regulations, or CMS Ruling that is common to each provider (42 C.F.R. §405.1837(b)(2))
● Not common issue if Board could make different findings for different providers based on factual differences (Board Rule 13)
● Board may allow a group appeal to encompass multiple years if no change in relevant law, but not multiple issues
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Group Appeals
Commonly Owned/Controlled Providers
● CIRP ‐mandatory Common Issue Related Party group
● Related party—standard Medicare definition (42 C.F.R. §413.17; PRM Part I Ch. 10)
● Mandatory vs. optional groups
● No commingling of related and unrelated providers
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Group Appeals
Certifications
● none of the appealed issues are currently pending or were previously adjudicated, withdrawn or dismissed; and
● no other related provider has pending appeal on the same issue(s) for the same calendar year
Direct Adds to Groups
● New Board Rule 16.1.B and New Model Form E (3/1/13)—must attach NPR
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Group Appeals
Schedules of Providers (3/1/13 Board Rules at 70‐71)
● Documentation showing jurisdictional/procedural requirements met
● Organized by lettered columns on cover schedule with corresponding tabs for supporting documentation
A. Date of final determination
B. Date of hearing request filing (documentation of delivery for appeals filed after 8/21/08—Board Rule 21.B)
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Group Appeals
Schedules of Providers (continued)C. Number of days between final determination and
appeal filing (receipt by Board if filed on or after 8/21/08)
● For issues added to individual appeal then transferred to group, number of days from determination to add (21.C.)
D. Audit adjustment number or protest item information
● Additional documentation for revised NPRs (21.D.; see earlier slide)
E. Amount in controversy
F. Prior case numbers (Board Rule 21E)
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Group Appeals
Schedules of Providers (continued)
G. Dates of Direct Add/Transfer
● Paper trail showing how provider cost year added to group (new Board Rules 16.1, 21.G)
● Transfers (Board Alert 8, 12/8/2011; new Board Rules 16.1.A, 21.G 3/01/13)
● Direct adds to group (new Board Rule 16.1.B)
H. Provider representative letter including year andissue—new Tab (new Board Rule 21.H)
● Full copies to Board and lead MAC; cover schedule only to BCBSA (excel format requested) (New Board Rule 20.1)
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Group Appeals
Designation of Lead MAC
● Greatest number of providers OR if tied, amount in controversy controls
● Designate lead MAC upon group formation, but may need modification later
● Notify old and new MAC if a lead MAC change
● Appeal Correspondence must specify MAC jurisdiction & MAC name, including State:
Example: JH‐ Novitas—Texas
J12‐Novitas—New Jersey
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1 - Palmetto GBA (CA, NV, HI)FCSO –Subcontractor
11 –Palmetto (SC, NC, VA, WV) Novitas Solutions, Inc. (formerly Highmark) (TX, OK, NM,
CO, AR, LA, MS). CMS combined J‐4 & J‐7.
5 - WPS (KS, MO, NE, IA) WPS was re-awarded J-5 on July 31, 2012.
12 - Novitas Solutions, Inc. (formerly Highmark Medicare Services)
(PA, NJ, DE, MD, DC)
– Noridian (CA, NV, HI, American Samoa, Guam, N. Mariana Islands). Formerly J‐1 (Palmetto) – awarded 9/2012. *PROTEST*
National Government Services, Inc (NGS) (IL, WI, MN) 13 – NGS (NY, CT)
* – Novitas (DE, DC, MD, NJ & PA) ‐ Formerly J‐12 (Novitas) *PROTEST*
8 - WPS (IN, MI) Re-awarded to WPS - 9/30/2011.
(ME, VT, NH, MA, RI)NGS–Subcontractor
*K – NGS (NY, CT, MA, RI, VT, ME and NH). CMS has combined J‐13 & J‐14.
(FL, Puerto Rico) Blue Cross Blue Shield of SC acquired CIGNA Government Services) (OH, KY)
*N – (Florida, Puerto Rico, and the Virgin Islands)RFP released 12/07/12 ‐ Formerly J‐9 (First Coast)
(AL, GA, TN) – Noridian (WA, OR, ID, AK, AZ, UT, WY, MT, ND, SD)
CMS has combined J‐2 & J‐3
J – (Alabama, Georgia and Tennessee) – RFP released 1/24/13. Formerly J‐10 (Cahaba).
A/B MAC Jurisdictions
RI
MA
As of March 1, 2013 Prepared by BCBSA
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NH
Puerto Rico
WA
OR
CA
HI
TX
NMAZ
UT
NV
ID
MT ND
SD
NE
WY
COKS
OK AR
LA
MSAL
GA
FL
SC
NC
TN
KYMO
IL
IA
MN
WIMI
INOH
WV
VA
PA
NY
MEVT
CT
NJDE
MDDC
AK
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10
2
1
3
4
5
13
12
11
9
15
3
7
*HJ-4&J-7
*FJ-2&J-3
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2AK
*E J-1
8
6
*L J-12
*K J-13, J-14
*N J-9
*JJ-10
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As of Prepared by BCBSA
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• J1‐JE FCSO‐CA (CA, NV, HI) –Awarded to Noridian— Under Protest
• JF‐ Noridian (WA, OR, ID, AK, AZ, UT, WY, MT, ND, SD)
• JH‐ Novitas (TX, OK, NM, CO, AR, LA, MS)
• J5‐ WPS (KS, MO, NE, IA)
• J6‐ NGS‐IL, NGS‐WI, Noridian‐MN (IL, WI, MN) Awarded to NGS—Transitioning in July & August 2013
• J8‐ WPS (IN, MI)
• J9‐JN FCSO‐FL (FL, Puerto Rico) RFP released 12/07/12
• J10‐ Cahaba, GBS (AL, GA, TN)
• J11‐ Palmetto (SC, NC, VA, WV)
• J12‐JL Novitas (PA, NJ, DE, MD, DC) –Awarded to Novitas— Under Protest
• J13‐JK NGS‐NY (NY, CT)‐Awarded to NGS
• J14‐JK NGS‐ME (ME, VT, NH, MA, RI)‐ Awarded to NGS
• J15‐ Palmetto (OH, KY)
A/B MAC Jurisdictions‐PRRB Appeals Contractors
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As of March 1, 2013 Prepared by BCBSA
ASC‐BCBSA / Senior Government Initiatives
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As of March 1, 2013 Prepared by BCBSA
3/18/2013
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ASC‐BCBSA / Senior Government Initiatives
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As of March 1, 2013 Prepared by BCBSA
Procedural Snafus
Expedited judicial review (Board Rule 42)
● Statute—Board lacks “authority to decide question”
● Decision 30 days from date Board finds jurisdiction and request is “complete”
● Filing EJR requests
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Procedural Snafus
Provider Representative Letter Requirements
● Signed by owner/officer on provider letterhead (Board Rule 5.4)
● Only one representative per case (Board Rule 5.1)
● Contemporaneous and appeal specific
● For individual appeal, must identify provider’s fiscal year (modified Board Rule 5.4)
● For group appeal, must identify provider’s fiscal year and issue (new Board Rule 21.H—new Tab H to Schedule)
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Procedural Snafus
Service Copies and Electronic Filing
● Send any document filed with the Board simultaneously to opposing party and appeals support contractor (BCBSA)
● Send electronically to BCBSA (do not send documentation supporting Schedule of Providers—cover schedule only)
● Multiple hard copies to Board for multiple cases (highlight case number)
● 5 copies of position papers to Board 7‐10 days before hearing (modified Board Rule 27.6)
● Redact confidential information ‐ PHI and PII
● Board requires redaction to avoid public disclosure
● Do not send PHI or PII to BCBSA
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Procedural Snafus
Postponement of Hearings (Board Rule 30.3)
● Scheduling conflict
● Board expects parties to be ready
● Probable settlement does not guarantee
● Documentation issues
● Jurisdictional challenges
● Timetable/joint scheduling order
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Procedural Snafus
Remands
● CMS Ruling CMS‐1498‐R (April 28, 2010)
● Medicare DSH Appeals on SSI fraction data matching process, “non‐covered” days, labor and delivery days
● TDL‐11456 (Sept. 6, 2011)
● Appeals on labor and delivery days
● CMS Ruling CMS‐1355‐R (April 14, 2011)
● Hospice cap determinations ‐‐ TDL‐11367, June 23, 2011
● Remand issues in pending appeals
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QUESTIONS?
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Presenters
Lisa Sarris [email protected](312) 297‐5521
Melanie Marolf‐[email protected](410) 786‐5599
Lisa [email protected](410) 786‐2922
Stephanie [email protected](202) 887‐4049
Thank you!
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