On August 8, 2008, the Provider Reimbursement Review Board (PRRB) issued Rules (Board Rules) on the Medicare Part A appeal process and procedures at the PRRB. The Board Rules supersede and replace the PRRB’s previous appeal guidelines, which were referred to as “Instructions.” The Board Rules are effective on August 21, 2008, and apply to appeals pending on that date.
On August 13, 2008, the PRRB issued an Alert regarding the automatic extension of position paper due dates. The Alert states that if a party received an acknowledgment letter from the PRRB prior to August 21, 2008, which set preliminary or final position paper due dates that fall on or after September 1, 2008, the provider’s preliminary position paper would be extended by four months from the original due date. The Alert also states that the parties may disregard any final position paper due dates set in acknowledgment letters issued before August 21, 2008. The due dates for final position papers will be reset by the PRRB when it issues its notice of the hearing date.
The Board Rules follow upon, but are distinct from, the regulations governing the Part A appeal process at the PRRB that were issued by the Centers for Medicare & Medicaid Services (CMS) on May 23, 2008. The CMS Regulations, which were published in the Federal Register and are part of the Code of Federal Regulations, also are generally effective on August 21, 2008. We discussed the CMS Regulations in our newsletter entitled “CMS Implements Restrictive Rules for Medicare Part A Appeals,” which is available at http://www.foley.com/publications/pub_detail.aspx?pubid=5067.
The PRRB’s issuance of its appeal guidelines under the designation of “Rules” rather than “Instructions” is likely to create significant confusion between the regulations that were issued by CMS and the Board Rules. In the past, it was easier to distinguish between the different sets of rules because the PRRB’s rules were referred to as Instructions.
We discuss below some of the most significant changes in the Board Rules from the provider’s perspective.
Filing of Appeals
Under the Board Rules, filing individual provider appeals will be more burdensome than in the past. To file an individual appeal, the provider must submit the following:
These requirements will make the filing of appeals more burdensome and time-consuming than in the past. Providers will likely find it necessary to do more advance planning regarding the filing of appeals than they may have done in the past.
Schedule for Submission of Preliminary Position Papers
The Board Rules establish two options that providers may choose with regard to the time period for submission of preliminary position papers. The PRRB explained that the standardized timeline used in the past for the submission of the preliminary and final position papers did not take into account the complexities or needs of the particular case, and often resulted in the final position papers being filed months or years before the hearing. In order to give the parties flexibility, the PRRB will notify the parties that they may follow one of the following options with regard to the submission of preliminary position papers.
The first option is for the PRRB to establish a standard timeline for the submission of the parties’ preliminary position papers. The PRRB will allow more time for the submission of position papers than it previously did. In general, the provider’s preliminary position paper will be due eight months after the appeal filing. The intermediary’s preliminary paper will be due 12 months after the appeal filing, and the provider’s response will be due 15 months after the appeal filing. The PRRB will set the due date for the final position papers based upon the hearing date for the case.
The second option is for the provider and intermediary to establish the preliminary paper due dates jointly in a proposed Joint Scheduling Order (JSO). A JSO is a written scheduling plan covering all pre-hearing and hearing dates except the final position paper due date, which will be set by the PRRB. The JSO should follow the format in Model Form F. The deadlines set by the parties in a JSO become the PRRB’s deadlines and, upon motion, a party can be subject to sanctions for failure to comply with the JSO deadlines.
Content of Preliminary Position Papers
The CMS Regulations and the Board Rules impose preliminary position paper requirements that are more stringent than in the past. The PRRB stated that it is extending the due dates for the preliminary position papers to give the parties a better opportunity to develop their cases. The PRRB stated that it expects preliminary position papers to be developed fully, and to include all available documentation necessary to give the parties a thorough understanding of their opponent’s position. The PRRB also stated that it expects few requests for extensions, based upon compelling reasons, of the due date for preliminary papers.
The PRRB issued a caution that unless the parties demonstrate good cause such as subsequent case law or documents that were previously unavailable through no fault of the party offering the documents, new arguments and documents not included in the preliminary position paper may be excluded at the hearing.
This rule constitutes a major change from previous practice before the PRRB. In the past, preliminary position papers were often fairly vague. The parties knew that they could add arguments and documents until the date of the PRRB hearing, and that there was no penalty for not including the arguments and documents with the preliminary position paper. Thus, they frequently did not spend much time analyzing the appeal issues and collecting supporting documentation when the preliminary position paper was filed, but instead put off such work until the time of filing the final position paper or shortly before the PRRB hearing date. If providers do not analyze the appeal issues more quickly in the appeal process and collect supporting documents, they might find that they are precluded from raising additional arguments and from submitting additional documentation.
Request to Add an Issue to an Individual Appeal
The CMS Regulations set substantial limits on the ability of providers to add an issue to an existing individual appeal. Such requests must be filed within 240 days of the intermediary or CMS determination such as the Notice of Program Reimbursement (NPR), from which the provider is appealing. The provider should add new issues through the submission of Model Form C.
Postponements of Hearings
The PRRB stated that it will consider, but will not routinely grant, postponement requests of a scheduled hearing date. The representation that a settlement is imminent or probable will not guarantee a postponement.
Under the Board Rules, a provider will have up to three years from the date of the PRRB’s notice that it has dismissed or closed a case in which to submit a request for reinstatement of the appeal. This represents a significant change from the previous Instructions, which required a provider to submit a request for reinstatement within 180 days of the PRRB’s notice of dismissal or closure of a case.
Under the Board Rules, providers will be required to analyze their appeals and collect supporting documentation earlier in the appeal process than was previously the case. Appeal letters as well as preliminary position papers, will need to be much more detailed than they were previously. If providers do not include the level of specificity required under the Board Rules in their appeal letters and preliminary position papers, they risk dismissal of their appeals.
Lawrence W. Vernaglia