The Provider Reimbursement Review Board (PRRB or the Board) recently posted new "Rules" to its website on the Internet in follow-up to the publication of the May 23, 2008, Final Rule by the Centers for Medicare and Medicaid Services (CMS) (see 73 Fed. Reg. 30190) that dramatically changed the manner in which providers will pursue Medicare Part A reimbursement appeals. The new PRRB Rules, which supersede the Board's previous instructions, apply to all appeals pending as of or filed on or after August 21, 2008.

Building on the foundation set by the May 23, 2008, rulemaking, the new PRRB Rules outline the procedures providers must follow to comply with the CMS Final Rule. Key changes include a decided move to a forms-based filing system by the Board. The Rules specifically instruct providers to use Model Forms A-F located in the Appendix to the Rules for filing individual and group appeal requests, adding and transferring issues, submitting requests to join an existing group, scheduling providers in a group, and for proposed joint scheduling orders. The Model Forms will require attachments as necessary to meet Board jurisdictional and other requirements specific to the appeal. Nevertheless, many routine communications with the Board now will be rigorously standardized.

The procedures governing the content and timing of appeals are also significantly changed. The appeals process now begins at the filing of the cost report (per the CMS and PRRB requirement to demonstrate that an appealed item was claimed or protested on the cost report in accordance with proper procedures), and the issues addressed in an appeal must be "locked in" by no later than 240 days from the issuance of the intermediary's final determination (i.e., the notice of program reimbursement, or NPR). No longer will providers be afforded the luxury of adding issues and modifying their appeals based on policy clarifications, the outcome of Medicare reimbursement litigation, or a more detailed review of the cost reporting adjustments. Accordingly, providers must be prepared to file their hearing requests in a manner protecting all potential issues that they may pursue

A few highlights of the new Rules (for the early phases of the appeal process):

The Hearing Request—Individual Appeals

The hearing request is designed to allow the Board to make a preliminary jurisdictional determination with respect to the appeal before any other actions in the appeal can occur (generally limited to a satisfaction of the amount in controversy and timeliness elements). To file an individual appeal, providers must now complete Model Form A—Individual Appeal Request—Initial Filing and include all supporting documentation listed on the request. Unlike current provider practices which may involve very terse requests for appeal, the hearing request will become a much more involved instrument as evidenced by Model Form A.

Model Form A requires providers to demonstrate dissatisfaction with program reimbursement on a specific item-by-item basis as opposed to the amount of total program reimbursement. As a result, providers must attach a statement to Model Form A describing each issue being appealed that identifies, among other things, the legal basis for the appeal—citing statutes, regulations, and/or manual provisions. Thus, under the new Rules, the initial hearing request essentially has become a "preliminary position paper" filed at the outset of the appeal.

Group Appeals

The shift to a form-based system becomes even more pronounced with the new group appeals procedures, which involve use of Model Form B for group appeal requests, Model Form D for transferring an issue from an individual appeal to a group appeal, and Model Form E for adding a provider to a group appeal directly from the appeal of a final determination (as opposed to transferring the issue from an individual appeal). As the multiple form types suggest, the new procedures reflect the biggest change to the group appeal process: the rule that for commonly-owned providers, if more than one provider is expected to appeal the same issue, that issue must be brought as a group appeal from the very beginning. Forms B and E will eventually save providers some time, as they allow providers to skip the step of including an issue in an individual appeal prior to transferring it to a group appeal.

Other noteworthy changes include the requirement that both the provider representative for the individual provider and the provider representative for the group must sign Form D (request to transfer an issue to a group appeal from an individual appeal) and Form E (request to transfer a provider to a group appeal directly). Also, the group representative must designate the lead intermediary in the original group appeal request—this will require the group representative to make a good faith prediction as to the intermediary that it believes will have the most providers involved in the appeal. And while the instructions regarding schedules are not vastly different, they are very specific with respect to the types of documentation that need (or need not) be included (for example, copies of the form used to file an appeal and copies of proof of receipt of the request should be included at Tab B). Those responsible for preparing schedules should refer to Rule 21 to ensure that all of the required documentation is included in the schedules, which must be bound.

Position Papers and the New Joint Scheduling Order Option

The Board Rules announce a marked change in both the nature and timing of the position paper phase of the appeal process. Final position paper due dates will be assigned based on the hearing date and not based on the date of the hearing request, which, in combination with other procedural changes, will greatly reduce the filing of supplemental position papers. The biggest change, however, is the introduction of an option in the appeals process for the parties to (1) file preliminary position papers and follow the timelines established by the Board in its acknowledgement letter, or (2) mutually agree to a "Joint Scheduling Order," a party-imposed pre-hearing schedule (except for the final position paper which is based on the hearing date).

The Joint Scheduling Order (JSO) allows the intermediary and the hospital to tailor a schedule to the specific circumstances of a particular case. It, too, is a "Model Form" filing (Model Form F) that must contain a discussion of the resolved issues, conditionally resolved issues, and unresolved issues (in a manner that sets forth the parties' positions), and that contains timelines for exchanging documentation as well as a proposed hearing month and year. However, it is important to note that the JSO cannot establish timelines that are contrary to regulatory requirements (i.e., the intermediary could not agree to allow the hospital more than 240 days from the NPR to add an issue to the appeal).

Should providers choose to file preliminary position papers in accordance with the Board's schedule instead of a JSO, the Board makes very clear that its expectation for such preliminary position papers are much higher than in prior practice. Indeed, the contents of the preliminary position paper must contain the "fully developed positions" of the parties and include all available documentation. In this regard, the preliminary position papers essentially will become what final position papers have traditionally been. The provider will now be permitted a response to the intermediary's preliminary position paper in order to rebut intermediary points or address new issues raised by the intermediary and attach any additional supporting documentation responsive to intermediary arguments. The final position papers are generally expected to reflect a "refinement" of the issues from the preliminary position paper or JSO.

Conclusion

The Board Rules add further emphasis to the level of attention that must be paid by providers at the early stages of the appeal process, beginning with the cost report itself. The new Rules present the opportunity for significantly more interaction between the parties at earlier stages of the appeal than current practice. Whether this will translate into a more prompt resolution of Medicare Part A appeals (as is the goal) remains to be seen.

The PRRB Rules are available online. For a detailed analysis of the CMS Final Rule, please see the June 12, 2008, issue of the Health Law Update.