Significant Rule Changes Impact the Provider Reimbursement Review Board (PRRB) Appeals Process

In August, the Provider Reimbursement Review Board (“PRRB”) released 90 pages of updated rules governing its appeals process. The rules were issued with immediate effect and apply to all pending and future appeals. If a provider fails to comply with these new rules, the PRRB has discretion to dismiss the appeal.¹ Because appeals before the PRRB are typically high-value cases, it is critical that attorneys and providers that have cases before the PRRB understand the rule changes.

As background, the PRRB is an independent adjudicating body of the United States Department of Health and Human Services to which a Medicare Part A provider may appeal if dissatisfied with a “final determination” by a Medicare contractor of the Center for Medicare & Medicaid Services (“CMS”). A “final determination” for purposes of a Part A appeal include, but are not limited to, notices of program reimbursement, exception determinations, and other determinations issued by CMS or its contractors with regard to the amount of total reimbursement due to the provider. ² In order to appeal a final determination to the PRRB, the amount in controversy for a single provider must be at least $10,000. ³ For two or more providers, the amount in controversy must be $50,000 or more. ⁴ Part A providers that most often utilize the PRRB process to challenge program reimbursement decisions are hospitals.

Noteworthy rule changes include, but are not limited to, the requirement that the parties file a preliminary position paper with corresponding exhibits with the PRRB. Previously, parties were required to exchange preliminary position papers, but were only required to file a cover sheet, list of exhibits, and a good faith statement with the PRRB. ⁵ Under the new rules, arguments and documents not included in the preliminary position paper may be excluded at the hearing except for good cause. As such, providers will need to fully develop their positions and include all available relevant documentation in a preliminary position paper. The case will be dismissed if a provider fails to timely file a preliminary position paper or, alternatively, a proposed joint scheduling order indicating that the parties believe the case may be resolved without briefing. ⁶

In addition, the new rules reflect the CY 2015 Outpatient Prospective Payment System Final Rule, as incorporated in 42 C.F.R. § 413.24, which requires providers to either claim or protest an item on the cost report as a condition of payment. For cost reporting periods before January 1, 2016, a provider has a right to a PRRB hearing notwithstanding its failure to comply with the disallowance regulation, so long as the Medicare contractor was bound by the regulation or other payment policy being appealed. For appeals of costing reporting periods after July 1, 2016, the PRRB is required to give the parties an opportunity to submit factual evidence and legal arguments regarding the question of whether the provider’s cost report included an appropriate claim for the specific item under appeal. ⁷

Other rule changes include the requirement that appeals of the same issue from different determinations be brought in a single appeal. For new appeals, if a provider believes their claims can be resolved through a reopening by the Medicare Administrative Contractor (“MAC”), the provider can withdraw their appeal.⁸ If no resolution is reached with the MAC, providers can reinstate their appeals with the PRRB by filing a motion for reinstatement that includes a copy of the reopening request and the MAC’s decision denying the reopening. ⁹

The new rules described in this article are not intended to be an exhaustive list of the changes to the PRRB appeals process. Medicare Part A providers should familiarize themselves with the new rules, as failure to comply with the rules could have severe consequences.

For additional information or assistance, please contact Wachler and Associates, P.C., at 248-544-0888.

¹ 42 C.F.R. § 405.1868.

² PRRB Rules, Version 2.0, Rule 4.3.1 (August 29, 2018).

³ 42 C.F.R. § 405.1837

⁴ Id.

⁵ PRRB Rules, Version 2.0, Rule 23 (August 29, 2018).

⁶ PRRB Rules, Version 2.0, Rule 23.2-23.4 (August 29, 2018).

⁷ PRRB Rules, Version 2.0, Rule 7.4 (August 29, 2018).

⁸ PRRB Rules, Version 2.0, Rule 47.2 (August 29, 2018).

9 Id.