American HealthAmerican HealthLawyers AssociationLawyers Association

Institutes onInstitutes onMedicare and Medicaid Medicare and Medicaid

Payment Issues Payment Issues Baltimore, MarylandBaltimore, Maryland

““Workshop on PRRB Practice Issues”Workshop on PRRB Practice Issues”

March 16, 2005March 16, 2005

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Medicare Appeals Medicare Appeals DevelopmentsDevelopments

ModeratorModerator Paul Crofton, Director, Division of Hearings Paul Crofton, Director, Division of Hearings

and Decisions, Office of Hearings, CMSand Decisions, Office of Hearings, CMS SpeakersSpeakers

Bernard M. Talbert, Esq., Associate General Bernard M. Talbert, Esq., Associate General Counsel, Blue Cross Blue Shield AssociationCounsel, Blue Cross Blue Shield Association

Ellen V. Weissman, Esq., Hodgson Russ LLPEllen V. Weissman, Esq., Hodgson Russ LLP

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Significant Changes between Significant Changes between Proposed Regulations & Existing Proposed Regulations & Existing

PRRB practicePRRB practice DeadlinesDeadlines

Sanctions and Cures for filing dismissalSanctions and Cures for filing dismissal

ReinstatementReinstatement

Hearing Rights/Self-Disallowed CostsHearing Rights/Self-Disallowed Costs

Adding IssuesAdding Issues

44

Calculating Time Periods/DeadlinesCalculating Time Periods/Deadlines (42 CFR 405.1801(d))(42 CFR 405.1801(d))

Current Regulation: No single definitionCurrent Regulation: No single definition Proposed Regulation: 42 CFR 405.1801(d)Proposed Regulation: 42 CFR 405.1801(d)

Adds Definitions Adds Definitions Adds general rules on counting, such as Adds general rules on counting, such as What is the first day/last dayWhat is the first day/last day Due Dates falling on holidays/weekends Due Dates falling on holidays/weekends Excludes days FI is closed due to Excludes days FI is closed due to

“Extraordinary Circumstances” “Extraordinary Circumstances”

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Deadline for Filing Appeal from NPRDeadline for Filing Appeal from NPR (42 CFR 405.1801 and 405.1835)(42 CFR 405.1801 and 405.1835)

Statute: Must file w/in 180 days after “Statute: Must file w/in 180 days after “noticenotice” ” of Intermediary determination. SSA 1878(a) of Intermediary determination. SSA 1878(a)

What is “notice” of FI Determination?What is “notice” of FI Determination? Currently = Date Currently = Date mailedmailed to Provider (42 CFR to Provider (42 CFR

405.1841(a))405.1841(a)) Proposed = “Date of Proposed = “Date of receiptreceipt by a party;” by a party;”

Presumed 5 days after FI “issues,” unless Presumed 5 days after FI “issues,” unless establish actual establish actual laterlater date. date.

““Issues” = postmark date (69 FR 35719)Issues” = postmark date (69 FR 35719)

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Deadline for Filing Appeal from NPRDeadline for Filing Appeal from NPR (42 CFR 405.1801 and 405.1835)(42 CFR 405.1801 and 405.1835)

Lessons - Ask clients to:Lessons - Ask clients to: Save all envelopes from reviewing entities Save all envelopes from reviewing entities

to prove postmark date, and to prove postmark date, and Date stamp actual date of receipt.Date stamp actual date of receipt.

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Deadline for Filing Appeal from NPR Deadline for Filing Appeal from NPR (42 CFR 405.1801 and 405.1835)(42 CFR 405.1801 and 405.1835)

Statute: Must “Statute: Must “filefile” w/in 180 days after notice ” w/in 180 days after notice of Intermediary determination. SSA 1878(a) of Intermediary determination. SSA 1878(a)

Current Regulation: Filing = MailingCurrent Regulation: Filing = Mailing Proposed Regulation: Filing = Received Proposed Regulation: Filing = Received Cannot use email or faxCannot use email or fax Lesson: Certified mail has no guarantee of Lesson: Certified mail has no guarantee of

date of receipt. Use courier service date of receipt. Use courier service producing evidence of date of receipt. producing evidence of date of receipt.

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Request for HearingRequest for Hearing

Proposed Rules: Proposed Rules: Eliminate Preliminary Position Paper and move Eliminate Preliminary Position Paper and move

requirements to Request for Hearing requirements to Request for Hearing Require more information, including documents to Require more information, including documents to

prove jurisdictionprove jurisdiction LessonsLessons

Ask clients to review NPRs earlyAsk clients to review NPRs early Work with clients to identify issues and documents Work with clients to identify issues and documents Can’t wait until 180Can’t wait until 180thth day to mail. day to mail.

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Good Cause Exception for Late Filing Good Cause Exception for Late Filing (42 CFR 405.1836)(42 CFR 405.1836)

Current Regulation: Not defined. Split in circuits over Current Regulation: Not defined. Split in circuits over authority of PRRB to grant, given statutory time bar.authority of PRRB to grant, given statutory time bar.

Proposed Regulation: Defines “Good Cause” Proposed Regulation: Defines “Good Cause” Extraordinary Circumstances beyond provider’s control (e.g. Extraordinary Circumstances beyond provider’s control (e.g.

natural catastrophe or strike) natural catastrophe or strike) NotNot Good Cause: Change in law, rule, CMS Ruling, Manual Good Cause: Change in law, rule, CMS Ruling, Manual Must demonstrate good cause within “reasonable period of Must demonstrate good cause within “reasonable period of

time;” Barred after 3 years from NPR time;” Barred after 3 years from NPR Denial not appealable to court (like reopening)Denial not appealable to court (like reopening) LessonLesson: File on Time : File on Time

1010

Expedited Judicial Review (EJR) Expedited Judicial Review (EJR) (SSA 1878(f); 42 CFR 405.1842)(SSA 1878(f); 42 CFR 405.1842)

Statute: Board must act w/in 30 days of a Statute: Board must act w/in 30 days of a request; if doesn’t, Provider can file in court request; if doesn’t, Provider can file in court

Current Rule: Time for Board to act begins to run Current Rule: Time for Board to act begins to run after finding jurisdiction after finding jurisdiction

Proposed Rule: Time to act runs from bothProposed Rule: Time to act runs from both Finding Jurisdiction Finding Jurisdiction andand Notifying Provider request is “complete” Notifying Provider request is “complete” Comment: Potentially giant loophole, defeating Comment: Potentially giant loophole, defeating

statutory purpose of expedited review. statutory purpose of expedited review.

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Position Papers Position Papers (42 CFR 405.1853)(42 CFR 405.1853)

Current Rule: File w/in 60 days after file Current Rule: File w/in 60 days after file Request for Hearing! (Not enforced) Request for Hearing! (Not enforced)

Proposed Rule: Proposed Rule: Deadlines set in Critical Due Date Notice Deadlines set in Critical Due Date Notice Extension of Time to File for “Good Cause”Extension of Time to File for “Good Cause”

• ““Good Cause” not defined (No reference to .1841)Good Cause” not defined (No reference to .1841)• Not clear if must file Not clear if must file beforebefore due date? due date? • Any change from current case law? (Currently, Any change from current case law? (Currently,

human error no excuse.)human error no excuse.)

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Sanctions for Missing Deadlines Sanctions for Missing Deadlines (New 42 CFR 405.1868)(New 42 CFR 405.1868)

Provider Sanctions: Provider Sanctions: Dismiss case (Appealable)Dismiss case (Appealable) Order to show cause why not dismiss caseOrder to show cause why not dismiss case Other remedial action Other remedial action

Intermediary Sanctions:Intermediary Sanctions: Report to CMS AdministratorReport to CMS Administrator Cannot reverse/modify FI or CMS determination Cannot reverse/modify FI or CMS determination Cannot rule against FI on disputed issue (fact/law) Cannot rule against FI on disputed issue (fact/law) Preamble: Board may decide case on Provider’s Preamble: Board may decide case on Provider’s

papers; Inconsistent with proposed rule?papers; Inconsistent with proposed rule?

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Reinstatement after Dismissal Reinstatement after Dismissal for Failure to meet Deadlinesfor Failure to meet Deadlines

Current Rule: None; Treated as Current Rule: None; Treated as “Reopening”“Reopening”

Case Law: Almost impossible to reinstateCase Law: Almost impossible to reinstate Cases: Human error by Provider or Designated Cases: Human error by Provider or Designated

Rep no excuse for missing deadlinesRep no excuse for missing deadlines Proposed Rule: None.Proposed Rule: None. PRRB Instructions: Part I, XIII.b.PRRB Instructions: Part I, XIII.b. Draft PRRB Instructions: Draft Rule 19 Draft PRRB Instructions: Draft Rule 19

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Lessons for ProvidersLessons for Providers

Don’t miss deadlines!Don’t miss deadlines! Calendar all due dates with “alarms”Calendar all due dates with “alarms” Notify more than one person of due dateNotify more than one person of due date If change Designated Representative, If change Designated Representative,

notify Board (and prior Representative)notify Board (and prior Representative) Board corresponds only with Designated RepBoard corresponds only with Designated Rep

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Reinstatement after SettlementReinstatement after SettlementWhen FI Has Not PaidWhen FI Has Not Paid

Current and Proposed Rule: NoneCurrent and Proposed Rule: None Current PRRB Instructions (Pt I,XIII.a): Current PRRB Instructions (Pt I,XIII.a):

Can reinstate w/in 180 days (pro forma)Can reinstate w/in 180 days (pro forma) Runs from date of PRRB notice case is Runs from date of PRRB notice case is

withdrawnwithdrawn Draft PRRB Instructions (Rule 19):Draft PRRB Instructions (Rule 19):

Must make motionMust make motion Within 3 yearsWithin 3 years

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Lessons for ProvidersLessons for Providers

After settle, calendar date to reinstateAfter settle, calendar date to reinstate Notify Provider of due date to reinstateNotify Provider of due date to reinstate Reinstate if FI fails to meet settlement terms Reinstate if FI fails to meet settlement terms

or fails to complete w/in time to reinstateor fails to complete w/in time to reinstate Example: DSH auditsExample: DSH audits FI fails to complete audit within 180 daysFI fails to complete audit within 180 days

Reinstate if Reinstate if riskrisk FI won’t issue revised NPR FI won’t issue revised NPR

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Right to AppealRight to AppealSelf-Disallowed CostsSelf-Disallowed Costs(42 CFR 405.1835(a))(42 CFR 405.1835(a))

Proposed Rule:Proposed Rule: Cannot appeal self-disallowed cost unlessCannot appeal self-disallowed cost unless Include claim on cost report as protested itemInclude claim on cost report as protested item

Major change from current lawMajor change from current law BethesdaBethesda Athens I and IIAthens I and II

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Adding IssuesAdding Issues(42 CFR 405.1835(c))(42 CFR 405.1835(c))

Current Rule:Current Rule: Can add issue as of right Can add issue as of right Can add any time until hearingCan add any time until hearing

Proposed Rule:Proposed Rule: Board must approve request to addBoard must approve request to add Board must receive request w/in 60 days after Board must receive request w/in 60 days after

Request for Hearing is due (180 days from NPR) Request for Hearing is due (180 days from NPR) Major change. Previously, could learn from other Major change. Previously, could learn from other

appeals, add issue and move to group appeal appeals, add issue and move to group appeal

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Lessons (Adding Issues)Lessons (Adding Issues)

Get NPR and Audit Adjustment Report earlyGet NPR and Audit Adjustment Report early Identify all issues and file with Request for Identify all issues and file with Request for

Hearing, if possibleHearing, if possible If pressed for time; review after filing and If pressed for time; review after filing and

add issues shortly afteradd issues shortly after Review pending cases and Review pending cases and add issues nowadd issues now

In case proposed rule is adopted.In case proposed rule is adopted.

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Reopening: Proposed RuleReopening: Proposed Rule(42 CFR 405.1885)(42 CFR 405.1885)

DeadlinesDeadlines For Providers – Reviewing Entity must For Providers – Reviewing Entity must receivereceive

w/in 3 years; w/in 3 years; Lesson:Lesson: Calendar Due Date. Calendar Due Date. For Reviewing Entity - must For Reviewing Entity - must mailmail w/in 3 years w/in 3 years

While PRRB appeal is pending: While PRRB appeal is pending: Currently: Provider may bar reopening by FI Currently: Provider may bar reopening by FI

of issue appealed to PRRBof issue appealed to PRRB Proposed: FI or CMS could reopen any issue, Proposed: FI or CMS could reopen any issue,

even one appealedeven one appealed

2121

Post-Appeal AuditsPost-Appeal AuditsProposed Rule ChangesProposed Rule Changes

Self–Disallowed Costs (42 CFR 405.1803(d)) Self–Disallowed Costs (42 CFR 405.1803(d)) If Provider wins on appeal, proposed rule would If Provider wins on appeal, proposed rule would

allow CMS to direct FI to audit costsallow CMS to direct FI to audit costs Other Costs - 69 Fed Reg. at 35742Other Costs - 69 Fed Reg. at 35742

Preamble includes additional proposalPreamble includes additional proposal To allow FI to audit other costs not audited if To allow FI to audit other costs not audited if

Provider wins on appeal. Provider wins on appeal. Example: FI thought appeal not timely filed, and Example: FI thought appeal not timely filed, and

had not, therefore, audited the costshad not, therefore, audited the costs

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Pre-Hearing ConferencePre-Hearing Conference

Now the norm & not the exceptionNow the norm & not the exception Always with a Board memberAlways with a Board member Forces the Intermediary and Provider to Forces the Intermediary and Provider to

focus on casefocus on case

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Alternatives to a Live HearingAlternatives to a Live Hearingin Baltimorein Baltimore

Telephone HearingTelephone Hearing Video HearingVideo Hearing Record hearingRecord hearing MediationMediation

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Alternatives to a Live HearingAlternatives to a Live Hearingin Baltimorein Baltimore

Telephone HearingTelephone Hearing 1-2 hours1-2 hours One issueOne issue Not documentation intensiveNot documentation intensive Witnesses from alternative telephone sitesWitnesses from alternative telephone sites

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Alternatives to a Live HearingAlternatives to a Live Hearingin Baltimorein Baltimore

Video hearingVideo hearing One side or the other via videoOne side or the other via video Witnesses via videoWitnesses via video

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Alternatives to a Live HearingAlternatives to a Live Hearingin Baltimorein Baltimore

Record HearingRecord Hearing Usually limited to strictly legal issue(s)Usually limited to strictly legal issue(s) Usually one issueUsually one issue Not a documentation caseNot a documentation case

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Alternatives to a Live HearingAlternatives to a Live Hearingin Baltimorein Baltimore

MediationMediation Proposed Board rules require both parties to Proposed Board rules require both parties to

address Mediationaddress Mediation Over 1000 cases mediated Over 1000 cases mediated 99% success ratio99% success ratio If Intermediary agrees to mediate, it usually If Intermediary agrees to mediate, it usually

means a willingness to reverse/modify means a willingness to reverse/modify adjustmentsadjustments

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PRRB Inventory ReductionPRRB Inventory ReductionProject SummaryProject Summary

Intermediaries tasked to reduce appeals 50%Intermediaries tasked to reduce appeals 50% All time high cases of 13,907 in FY 2002All time high cases of 13,907 in FY 2002 Beginning Inventory 10/1/03-7475 casesBeginning Inventory 10/1/03-7475 cases Ending Inventory 9/30/04-5421 casesEnding Inventory 9/30/04-5421 cases 20 of 30 Intermediaries met 50 % goal20 of 30 Intermediaries met 50 % goal FY 2005-744 new appeals filedFY 2005-744 new appeals filed

cms.hhs.gov/providers/prrb/prrb.aspcms.hhs.gov/providers/prrb/prrb.asp