On Aug. 29, 2018, the Provider Reimbursement Review Board (PRRB) issued new rules containing both technical changes and substantial revisions to its appeal procedures. The 90-page PRRB Version 2.0 applies to both new and pending appeals as of the date of its release, and failure to follow the new requirements could result in a provider's loss of appeal rights. Among the key changes in the new rules are front-loading the grounds for appeal and an emphasis on electronic filing.
The PRRB is an independent panel created by Congress in 1972 and has jurisdiction over certain Medicare appeals by Part A providers. PRRB appeals stem from provider disagreement with reimbursement determinations by the Medicare Administrative Contractor (MAC) after its review of the provider's annual cost report, assuming the requisite amount is in dispute. The PRRB's goal is to "facilitate early resolution of appeals and eliminate unnecessary filing burdens where appropriate." The PRRB's decision may be affirmed, modified, reversed, or vacated by the CMS Administrator.
The new rules now require a full preliminary position paper, including exhibits, to be filed with the PRRB at the beginning of the appeal. By now having these materials provided to the PRRB from the outset, instead of just to the MAC, it effectively requires the appealing provider to set forth its formal position from day one. Commentary to the rules now explain that "preliminary position papers are expected to present fully developed positions of the parties and, therefore, require analysis well in advance of the filing deadline." Reinforcing this expectation, the new rules explain that "[n]ew arguments and documents not included in the preliminary position paper may be excluded at hearing unless the parties demonstrate good cause."
In addition, the new rules eliminate the requirements for a final position paper in any appeal filed after Aug. 29, 2018 and for a post-hearing brief in all appeals. Going forward, both will be optional with the former potentially being used to narrow the issues prior to hearing and the latter being subject to the PRRB's request.
Another significant change is the new reinstatement option, which allows providers to preserve their appeal rights while attempting to resolve their Medicare payment decisions at issue with the MAC. If unsuccessful, the provider can reinstate the appeal to pursue it before the PRRB.
In conjunction with the new rules, and to advance its stated goal of reducing unnecessary filing burden on providers, the PRRB is also shifting to an electronic filing system through the creation of the Office of Hearings Case and Document Management System (OH CDMS). The new rules state that, although "not currently required, the PRRB strongly recommends all parties utilize this new electronic case management tool." As guidance, CMS recently released an external user manual for OH CDMS, and providers (or their representatives) may register for the OH CDMS online. During the transition period, the PRRB will continue to accept hard copy submissions by mail, but it will not accept submissions by email or fax.
In addition to an emphasis on early position development, the new rules provide additional clarity, a new reinstatement option, and access to electronic filing. But they also create potential landmines for filing providers, who must be careful to satisfy the requirements of the updated rules to avoid risking significant money at issue on appeal.
Matthew Kroplin is a partner in the Nashville office of Burr & Forman, LLP. Kroplin, whose work is focused in the firm's healthcare and business litigation sections, is certified in healthcare compliance (CHC). He provides counsel to a broad range of health care industry clients, including providers, medical groups, hospitals, and surgery centers. For more information, go online to burr.com.
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