Other Procedural Changes

The Final Rule adopts a number of other procedural changes to the PRRB appeal process that legal counsel representing providers must master or risk dismissal of or prejudice to their cases. These include:

  • Time limits for requesting discovery in PRRB appeals.
  • Specifications that a quorum of the PRRB is not required for a PRRB hearing.
  • Regulatory support for the PRRB's dismissal of cases or the imposition of other sanctions on providers for failure to follow procedural requirements or for inappropriate conduct during hearings. (Notably, the regulations impose lesser sanctions on intermediaries that fail to follow the PRRB's procedures.)

Mandating that a change of a legal interpretation or policy by CMS in a regulation, CMS ruling, or CMS general instruction is not a basis for reopening a CMS, PRRB, or intermediary decision. This restriction on reopenings is a significant statement to providers that underscores the importance of filing appeals to protect their rights through the formal appeal process and not to rely on the possibility that an intermediary might agree to reopen a prior determination.

PRRB Instructions Will Likely Be Further Revised

The Final Rule will be interpreted by the PRRB through its appeal "Instructions." The Instructions are guidance through which the PRRB instructs providers and intermediaries on the process and procedures of the PRRB. In February 2005, the PRRB issued Draft Instructions that would further restrict the procedures for PRRB appeals. There are a number of areas in which the Draft Instructions overlap or are inconsistent with provisions of the Final Rule. The PRRB previously indicated that it would not finalize the provisions of the Draft Instructions until the Final Rule was finalized. In the preamble to the Final Rule, CMS stated that it anticipates that the PRRB will make revisions to its current Instructions as a result of the publication of the Final Rule.

The most significant and controversial aspect of the Draft Instructions concerns the appeal information and documentation that must be submitted with the provider's request for a hearing. Under the Draft Instructions, providers would be required to provide in their initial request for a hearing the explanation and documentation that is currently required in the provider's preliminary position paper. Also, the provider would be required to state, in numbered paragraphs, the material facts supporting the provider's claim. If any documents necessary to support the appeal were not previously furnished to the intermediary, the provider would be required to send those documents to the intermediary with the hearing request. The provider also would have to describe any legal issues in dispute and the authorities upon which it relies. The Draft Instructions would constitute a major change to the current notice filing for appeals and, if adopted by the PRRB, would greatly increase the burden on providers in the early stages of the appeal.

Action Steps for Providers

In light of the far-reaching changes in the Final Rule, it is important that providers take the following steps:

Immediately, providers should evaluate their internal processes and resources for prompt review and analysis of NPRs. This is necessary to ensure that all applicable appeal issues are included in the request for hearing. Providers should assess whether additional internal or external resources will be required.

Prior to October 20, 2008, review all existing cost reporting periods with pending appeals to determine whether there are additional issues that need to be included in the appeals and the information or research necessary to make a decision regarding those issues.

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Publication Date: Friday, September 11, 2009