1. American Health Lawyers Association Institutes on Medicare and Medicaid Payment Issues Baltimore, Maryland “Workshop on PRRB Practice Issues” March 16, 2005 March 16, 2005

2. 1 Medicare Appeals Developments  Moderator Paul Crofton, Director, Division of Hearings and Decisions, Office of Hearings, CMS 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 Bernard M. Talbert, Esq., Associate General Counsel, Blue Cross Blue Shield Association Ellen V. Weissman, Esq., Hodgson Russ LLP Ellen V. Weissman, Esq., Hodgson Russ LLP

3. 2 Significant Changes between Proposed Regulations & Existing PRRB practice  Deadlines  Sanctions and Cures for filing dismissal  Reinstatement  Hearing Rights/Self-Disallowed Costs  Adding Issues

4. 3 Calculating Time Periods/Deadlines (42 CFR 405.1801(d))  Current Regulation: No single definition  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 day What 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 “Extraordinary Circumstances” Excludes days FI is closed due to “Extraordinary Circumstances”

5. 4 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. 5 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. 6 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. 7 Request for Hearing  Proposed Rules: Eliminate Preliminary Position Paper and move requirements to Request for Hearing Eliminate Preliminary Position Paper and move requirements to Request for Hearing Require more information, including documents to prove jurisdiction Require more information, including documents to prove jurisdiction  Lessons Ask clients to review NPRs early Ask 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 180 th day to mail. Can’t wait until 180 th day to mail.

9. 8 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) Extraordinary Circumstances beyond provider’s control (e.g. natural catastrophe or strike) Not Good Cause: Change in law, rule, CMS Ruling, Manual 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 Must demonstrate good cause within “reasonable period of time;” Barred after 3 years from NPR Denial not appealable to court (like reopening) Denial not appealable to court (like reopening) Lesson: File on Time Lesson: File on Time

10. 9 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 Finding Jurisdiction and Notifying Provider request is “complete” Notifying Provider request is “complete” Comment: Potentially giant loophole, defeating statutory purpose of expedited review. Comment: Potentially giant loophole, defeating statutory purpose of expedited review.

11. 10 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 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 before due date?Not clear if must file before due date? Any change from current case law? (Currently, human error no excuse.)Any change from current case law? (Currently, human error no excuse.)

12. 11 Sanctions for Missing Deadlines (New 42 CFR 405.1868)  Provider Sanctions: Dismiss case (Appealable) Dismiss case (Appealable) Order to show cause why not dismiss case Order to show cause why not dismiss case Other remedial action Other remedial action  Intermediary Sanctions: Report to CMS Administrator Report 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 papers; Inconsistent with proposed rule? Preamble: Board may decide case on Provider’s papers; Inconsistent with proposed rule?

13. 12 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 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. 13 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 Board corresponds only with Designated Rep

15. 14 Reinstatement after Settlement When FI Has Not Paid  Current and Proposed Rule: None  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 withdrawn Runs from date of PRRB notice case is withdrawn  Draft PRRB Instructions (Rule 19): Must make motion Must make motion Within 3 years Within 3 years

16. 15 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 Example: DSH audits FI fails to complete audit within 180 days FI fails to complete audit within 180 days  Reinstate if risk FI won’t issue revised NPR

17. 16 Right to Appeal Self-Disallowed Costs (42 CFR 405.1835(a)) Right to Appeal Self-Disallowed Costs (42 CFR 405.1835(a))  Proposed Rule: Cannot appeal self-disallowed cost unless Cannot appeal self-disallowed cost unless Include claim on cost report as protested item Include claim on cost report as protested item  Major change from current law Bethesda Bethesda Athens I and II Athens I and II

18. 17 Adding Issues (42 CFR 405.1835(c))  Current Rule: Can add issue as of right Can add issue as of right Can add any time until hearing Can add any time until hearing  Proposed Rule: Board must approve request to add Board must approve request to add Board must receive request w/in 60 days after Request for Hearing is due (180 days from NPR) 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 Major change. Previously, could learn from other appeals, add issue and move to group appeal

19. 18 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. In case proposed rule is adopted.

20. 19 Reopening: Proposed Rule (42 CFR 405.1885)  Deadlines For Providers – Reviewing Entity must receive w/in 3 years; Lesson: Calendar Due Date. For Providers – Reviewing Entity must receive w/in 3 years; Lesson: Calendar Due Date. For Reviewing Entity - must mail w/in 3 years 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 Currently: Provider may bar reopening by FI of issue appealed to PRRB Proposed: FI or CMS could reopen any issue, even one appealed Proposed: FI or CMS could reopen any issue, even one appealed

21. 20 Post-Appeal Audits Proposed 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 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 Preamble includes additional proposal To allow FI to audit other costs not audited if Provider wins on appeal. 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 Example: FI thought appeal not timely filed, and had not, therefore, audited the costs

22. 21 Pre-Hearing Conference  Now the norm & not the exception  Always with a Board member  Forces the Intermediary and Provider to focus on case

23. 22 Alternatives to a Live Hearing in Baltimore  Telephone Hearing  Video Hearing  Record hearing  Mediation

24. 23 Alternatives to a Live Hearing in Baltimore  Telephone Hearing 1-2 hours 1-2 hours One issue One issue Not documentation intensive Not documentation intensive Witnesses from alternative telephone sites Witnesses from alternative telephone sites

25. 24 Alternatives to a Live Hearing in Baltimore  Video hearing One side or the other via video One side or the other via video Witnesses via video Witnesses via video

26. 25 Alternatives to a Live Hearing in Baltimore  Record Hearing Usually limited to strictly legal issue(s) Usually limited to strictly legal issue(s) Usually one issue Usually one issue Not a documentation case Not a documentation case

27. 26 Alternatives to a Live Hearing in Baltimore  Mediation Proposed Board rules require both parties to address Mediation Proposed Board rules require both parties to address Mediation Over 1000 cases mediated Over 1000 cases mediated 99% success ratio 99% success ratio If Intermediary agrees to mediate, it usually means a willingness to reverse/modify adjustments If Intermediary agrees to mediate, it usually means a willingness to reverse/modify adjustments

28. 27 PRRB Inventory Reduction Project 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