PRRB UpdatePRRB Update

Healthcare Financial Management Healthcare Financial Management Association Association

Region 11 Healthcare SymposiumRegion 11 Healthcare SymposiumLas Vegas, NevadaLas Vegas, NevadaJanuary 27, 2009January 27, 2009

22

PresentersPresenters

David L. Volk, Esq.David L. Volk, Esq.

Davis Wright Tremaine LLPDavis Wright Tremaine LLP

Los Angeles, CALos Angeles, CA

213.633.6819213.633.6819

davidvolk@dwt.comdavidvolk@dwt.com

Bernard M. Talbert, Esq.Bernard M. Talbert, Esq.

Blue Cross Blue Shield Blue Cross Blue Shield AssociationAssociation

Chicago, ILChicago, IL

312.297.6023312.297.6023

bernie.talbert@bcbsa.combernie.talbert@bcbsa.com

Paul Crofton, CPAPaul Crofton, CPADirector, Division of Hearings and Director, Division of Hearings and

Decisions Decisions PRRB, Baltimore, MDPRRB, Baltimore, MD410.786.9415410.786.9415paul.crofton@cms.hhs.govpaul.crofton@cms.hhs.gov

33

““Disclaimer”Disclaimer”

• These materials do not reflect the These materials do not reflect the views of HHS, CMS or the PRRB. views of HHS, CMS or the PRRB.

• Although Mr. Crofton has agreed to Although Mr. Crofton has agreed to donate his time to participate in donate his time to participate in this presentation, his comments this presentation, his comments and responses to questions do not and responses to questions do not represent the official position of represent the official position of HHS, CMS or the PRRB.HHS, CMS or the PRRB.

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• This presentation is for discussion This presentation is for discussion purposes only and should not be purposes only and should not be considered as legal advice with considered as legal advice with respect to specific entities or factual respect to specific entities or factual situations. Important changes do situations. Important changes do occur in statutes, regulations, and occur in statutes, regulations, and payment program guidelines. Consult payment program guidelines. Consult your counsel or representative in your counsel or representative in individual situations.individual situations.

55

Overview Of Overview Of PresentationPresentation

• BackgroundBackground– RulesRules– InstructionsInstructions

• Discussion Of Select Provisions Of Discussion Of Select Provisions Of Revised Rule And Instructions Revised Rule And Instructions

• Transitional Issues & FAQsTransitional Issues & FAQs• PRRB website: PRRB website:

http://www.cms.hhs.gov/PRRBReview/http://www.cms.hhs.gov/PRRBReview/02_PRRB_Instructions.asp02_PRRB_Instructions.asp

66

Background: RulesBackground: Rules

• Proposed rules published June 25, 2004. Proposed rules published June 25, 2004. 69 Fed. Reg. 35,716.69 Fed. Reg. 35,716.

• Final rules published May 23, 2008. Final rules published May 23, 2008. 73 Fed. Reg. 30,190 (CCH 73 Fed. Reg. 30,190 (CCH ¶ ¶ 180,742)180,742)(Correction published August 21, 2008 73 Fed. Reg. (Correction published August 21, 2008 73 Fed. Reg. 49355)49355)

• Effective date: Generally for appeals pending Effective date: Generally for appeals pending or filed on or after August 21, 2008.or filed on or after August 21, 2008.

• Scope of rules: Provider Part A reimbursement Scope of rules: Provider Part A reimbursement appeals to intermediaries and to the Provider appeals to intermediaries and to the Provider Reimbursement Review Board. Reimbursement Review Board.

77

• Stated impetus for change:Stated impetus for change:

– To update regulations that are more than To update regulations that are more than 30 years old.30 years old.

– To reduce, or at least not add to, the To reduce, or at least not add to, the backlog of cases at the Board.backlog of cases at the Board.

– To codify many existing practices at the To codify many existing practices at the Board and enhance the Board’s authority.Board and enhance the Board’s authority.

88

New Board Rules - New Board Rules - Board Objectives and Board Objectives and ExpectationsExpectations

• Evidence will be exchanged over a period of 8-15 Evidence will be exchanged over a period of 8-15 months after filing the individual appeal; longer months after filing the individual appeal; longer by agreement of partiesby agreement of parties

• Flexible scheduling options will be used to put Flexible scheduling options will be used to put parties in control of case development according parties in control of case development according to needs of the caseto needs of the case

• Preliminary position paper process or JSO will Preliminary position paper process or JSO will narrow the issues in number and complexitynarrow the issues in number and complexity

• Final position papers will be timed based on Final position papers will be timed based on hearing date and purpose is to inform and hearing date and purpose is to inform and persuade Board; parties will already know each persuade Board; parties will already know each other’s case, no surprisesother’s case, no surprises

99

Impact of New Impact of New Regulations & RulesRegulations & Rules

• ChallengesChallenges

– Labor Intensive, Front LoadedLabor Intensive, Front Loaded• Limit On Additional Issues Requires DiligenceLimit On Additional Issues Requires Diligence

– Greater Need For Involvement Of Provider Greater Need For Involvement Of Provider Representative In Initial and Early StagesRepresentative In Initial and Early Stages

– Increased Compliance Burden and Basis Increased Compliance Burden and Basis For Dismissal Or Other PRRB Sanctions If For Dismissal Or Other PRRB Sanctions If Failure To ComplyFailure To Comply

1010

OpportunitiesOpportunities• Clarification Reflects In Large Part PRRB Clarification Reflects In Large Part PRRB

Practice And ProcedurePractice And Procedure– Rights and Obligations More Clearly Rights and Obligations More Clearly

ArticulatedArticulated• Focus Of Proceedings Is More “Judicial-Focus Of Proceedings Is More “Judicial-

Like”Like”• Absent increased Intermediary funding, Absent increased Intermediary funding,

if the Provider has the resources and the if the Provider has the resources and the will to comply with the required will to comply with the required procedures, it’s position will be more procedures, it’s position will be more effectively presented to the PRRBeffectively presented to the PRRB

1111

Highlights of Highlights of Key Changes Key Changes in Rulesin Rules

1212

Hearing RequestHearing Request

• The Hearing Request The Hearing Request Requirements Are Significantly Requirements Are Significantly Expanded Expanded

– See Model Form ASee Model Form A

1313

Model FormsModel Forms

• A - Individual Appeal RequestA - Individual Appeal Request• B - Group Appeal RequestB - Group Appeal Request• C - Add Issue(s) to Individual AppealC - Add Issue(s) to Individual Appeal• D - Request to Transfer Issue to a Group D - Request to Transfer Issue to a Group

AppealAppeal• E - Request to Join an Existing Group E - Request to Join an Existing Group

Appeal; Appeal; Direct Appeal from NPRDirect Appeal from NPR• F - Proposed Joint Scheduling OrderF - Proposed Joint Scheduling Order• G - Schedule of Providers in GroupG - Schedule of Providers in Group

1414

Flexible Scheduling Tools (Rules 23-25)

• Preliminary Position Paper Dates

– Board Standard Schedule(8-12-15 months)

• vs.

– Joint Scheduling Order(Parties Agreed Schedule)

• vs.

– Mediation

1515

Preliminary Position Preliminary Position PaperPaper

• Preliminary Position Paper Preliminary Position Paper Requirements Have Increased Requirements Have Increased SignificantlySignificantly– Parties Must Fully State PositionParties Must Fully State Position– With Some Exceptions, Facts, Documents With Some Exceptions, Facts, Documents

and Legal Arguments Must Be Fully Briefedand Legal Arguments Must Be Fully Briefed– ““V” approachV” approach

• Cases are “front-loaded” so cases Cases are “front-loaded” so cases settle sooner rather than latersettle sooner rather than later

1616

Adding Issues Adding Issues

• Previously: an issue could be added to a Previously: an issue could be added to a pending appeal prior to the hearing datepending appeal prior to the hearing date

• Now: the request must be received by the Now: the request must be received by the Board no later than 60 days after the Board no later than 60 days after the expiration of the initial 180-day filing expiration of the initial 180-day filing periodperiod

• For appeals pending as of Aug. 21, 2008, the For appeals pending as of Aug. 21, 2008, the deadline is the later of: deadline is the later of: (a) 60 days after the expiration of the 180-(a) 60 days after the expiration of the 180-day period or (b) Oct. 20, 2008. day period or (b) Oct. 20, 2008.

• No more “sub-issues”No more “sub-issues”

1717

Duty to Confer Duty to Confer

• Rule 10: Intermediary duty on receipt of individual appeal to confer on stipulations

• Rule 23: Conference implicit, indispensable to JSO and duty ongoing

• Rule 26.3: Discovery disputes• Rule 29: Pre-hearing conferences• Rules 30.3 and 31: Requests for

postponements and accelerated hearing• Rule 44: Motions

1818

Background: Background: PRRB InstructionsPRRB Instructions

• Revised Board Revised Board Instructions Instructions http://www.cms.hhs.gov/PRRBReview/Downloads/http://www.cms.hhs.gov/PRRBReview/Downloads/

PRRBRules2008.pdfPRRBRules2008.pdf

Issued August 8, 2008Issued August 8, 2008 Effective August 21, 2008 to coincide Effective August 21, 2008 to coincide

with the CMS Final Rulewith the CMS Final Rule Apply to all appeals pending as of, or Apply to all appeals pending as of, or

filed on or after, August 21, 2008filed on or after, August 21, 2008 Written suggestions welcomed Written suggestions welcomed

Suggestionsonprrbrules@cms.hhs.govSuggestionsonprrbrules@cms.hhs.gov

1919

Scheduling AlertsScheduling Alerts

Automatic Extension of Position Paper Due Automatic Extension of Position Paper Due DatesDates

(See PRRB web site)(See PRRB web site)

• Alerts 1 and 2Alerts 1 and 2

– Preliminary Position Papers Scheduled Prior To August Preliminary Position Papers Scheduled Prior To August 21, 200821, 2008

• Extended 4 months, unless parties enter into Joint Extended 4 months, unless parties enter into Joint Scheduling Order (“JSO”)Scheduling Order (“JSO”)

– Final Position Papers Scheduled Prior to August 21, 2008 Final Position Papers Scheduled Prior to August 21, 2008 • To be set in PRRB notice of hearing.To be set in PRRB notice of hearing.

2020

Alert 2:Alert 2: (Clarifies the following situations)(Clarifies the following situations)

• Individual AppealsIndividual Appeals– Automatic Extension of Position Paper Due Dates Automatic Extension of Position Paper Due Dates

– Due Dates for Position Papers When a Revised NPR Appeal Due Dates for Position Papers When a Revised NPR Appeal is Combined with an Existing Appealis Combined with an Existing Appeal

• Optional (Non-CIRP) GroupsOptional (Non-CIRP) Groups– Filed Prior to August 21, 2008 Filed Prior to August 21, 2008

– If Received Group Acknowledgement & Critical Due Dates If Received Group Acknowledgement & Critical Due Dates Letters Between August 21, 2008 and September 5, 2008 Letters Between August 21, 2008 and September 5, 2008

• Mandatory (CIRP) Groups Mandatory (CIRP) Groups – Filed Prior to August 21, 2008 Filed Prior to August 21, 2008

– Mandatory (CIRP) Groups Filed On or After August 21, 2008Mandatory (CIRP) Groups Filed On or After August 21, 2008

2121

Alert 3Alert 3 (Clarifies the following situations)(Clarifies the following situations)

• Applicable only to CASES PENDING Applicable only to CASES PENDING BEFOREBEFORE AUGUST 21, 2008, AND HAVING AN ISSUE AUGUST 21, 2008, AND HAVING AN ISSUE ADDED ADDED ON OR AFTER AUGUST 21, 2008ON OR AFTER AUGUST 21, 2008. .

• In cases filed prior to August 21, 2008, if issues In cases filed prior to August 21, 2008, if issues are added after that date pursuant to 73 FR are added after that date pursuant to 73 FR 30240 (60 days after implementation of the 30240 (60 days after implementation of the Regulations or, as applicable, 60 days after Regulations or, as applicable, 60 days after expiration of the 180 day appeal deadline) but expiration of the 180 day appeal deadline) but after position paper deadlines have already after position paper deadlines have already expired, a supplemental position paper that expired, a supplemental position paper that complies with the requirements of Rule 25 for complies with the requirements of Rule 25 for the added issue is due as follows: the added issue is due as follows: 

2222

• Provider's supplemental position paper due – Provider's supplemental position paper due – 120 days prior to hearing 120 days prior to hearing 

• Intermediary's response due – Intermediary's response due – 60 days prior to hearing 60 days prior to hearing 

• Provider's rebuttal (optional) due – Provider's rebuttal (optional) due – 30 days prior to hearing. 30 days prior to hearing. 

• EXCEPTIONEXCEPTION:  :  If you have a hearing date scheduled on or before If you have a hearing date scheduled on or before March 1, 2009, contact the Intermediary to work out a March 1, 2009, contact the Intermediary to work out a position paper schedule for the added issue. If no position paper schedule for the added issue. If no agreement can be reached, contact your Board Advisor. agreement can be reached, contact your Board Advisor. The position paper must meet Rule 25 requirement.The position paper must meet Rule 25 requirement.

2323

Alert 4Alert 4

• Issues added prior to August 21, 2008 Issues added prior to August 21, 2008 – After final positions papers filedAfter final positions papers filed– Not fully briefedNot fully briefed

• Must be fully briefed consistent w/Rule 27Must be fully briefed consistent w/Rule 27

• Timelines for supplemental PP on added issueTimelines for supplemental PP on added issue– Provider-120 days prior to hearingProvider-120 days prior to hearing– Intermediary-60 days prior to hearingIntermediary-60 days prior to hearing– Provider’s rebuttal (optional)- 30 days prior to hearingProvider’s rebuttal (optional)- 30 days prior to hearing

• For hearings scheduled on or before March 1, 2009 For hearings scheduled on or before March 1, 2009 Intermediary should be contacted to work out a briefing Intermediary should be contacted to work out a briefing scheduleschedule

2424

Hearing Request:Hearing Request:

BasicsBasics

2525

Appeal Criteria - PRRBAppeal Criteria - PRRB

• Provider dissatisfied with final Provider dissatisfied with final determinationdetermination

• Timing - Within 180 days from the Timing - Within 180 days from the Final Determination appealedFinal Determination appealed

• Amount in controversy $10,000 or Amount in controversy $10,000 or more for individual appeals, $50,000 more for individual appeals, $50,000 or more for Group appealor more for Group appeal

• NPR not issued within one year from NPR not issued within one year from cost report filingcost report filing

Changes in the Changes in the New New Regulations & Regulations & RulesRules

2727

Dissatisfaction and Dissatisfaction and “Self Disallowance”“Self Disallowance”

• Effective with cost reporting periods Effective with cost reporting periods ending on or after Dec. 31, 2008, a ending on or after Dec. 31, 2008, a Provider will not be granted appeal Provider will not be granted appeal rights for items unless it can show rights for items unless it can show an audit adjustment or demonstrate an audit adjustment or demonstrate it followed the applicable procedures it followed the applicable procedures for filing a cost report under protest.for filing a cost report under protest.

2828

Self Disallowed CostsSelf Disallowed Costs

• Audits of Self-Disallowed ItemsAudits of Self-Disallowed Items

– After successful appeal by Provider, After successful appeal by Provider, Intermediary must audit to Intermediary must audit to determine proper reimbursement determine proper reimbursement effect, requiring second appeal by effect, requiring second appeal by Provider if it disagrees with audit Provider if it disagrees with audit results.results.

2929

Dissatisfaction with a Dissatisfaction with a Revised Cost ReportRevised Cost Report

• Reopening Reopening (42 C.F.R. (42 C.F.R. §§405.1885(5) & (6))405.1885(5) & (6))

– ““If a matter is reopened If a matter is reopened andand a revised a revised determination of decision is made” you determination of decision is made” you can appeal the revised determination.can appeal the revised determination.

3030

Timeliness of Hearing Timeliness of Hearing RequestRequest

• Board must receive Provider’s request no later Board must receive Provider’s request no later than 180 days after the Provider received the than 180 days after the Provider received the determination being appealed determination being appealed

– Provider is presumed to have received the Provider is presumed to have received the determination 5 days after issuance, unless determination 5 days after issuance, unless established to the contrary by a preponderance of the established to the contrary by a preponderance of the evidence. (42 C.F.R. §405.1801(a)(1))evidence. (42 C.F.R. §405.1801(a)(1))

– Date of receipt by the Board is date of delivery if Date of receipt by the Board is date of delivery if delivered by a nationally-recognized courier, or the delivered by a nationally-recognized courier, or the date stamped “received” if delivered otherwise, date stamped “received” if delivered otherwise, unless established to the contrary by a preponderance unless established to the contrary by a preponderance of the evidence. Determination of date of receipt is of the evidence. Determination of date of receipt is not subject to appealnot subject to appeal

3131

TimelinessTimeliness

• Filing Deadline Extensions Filing Deadline Extensions (42 C.F.R. §405.1836)(42 C.F.R. §405.1836)

– Granted only for good cause due to Granted only for good cause due to extraordinary conditions beyond a extraordinary conditions beyond a Provider’s control, e.g., fire or strikeProvider’s control, e.g., fire or strike

– No extension due to a change in the lawNo extension due to a change in the law

– Determination by the Board or Determination by the Board or Administrator not subject to judicial reviewAdministrator not subject to judicial review

3232

Amount in ControversyAmount in Controversy

• $10,000 Jurisdictional Amount $10,000 Jurisdictional Amount (42 C.F.R. §405.1839)(42 C.F.R. §405.1839)

– Specifically restricts appeals to a single yearSpecifically restricts appeals to a single year– Effect of reimbursement in another year has Effect of reimbursement in another year has

no bearingno bearing– Board retains jurisdiction once $10,000 limit Board retains jurisdiction once $10,000 limit

met, even if the amount later falls below met, even if the amount later falls below $10,000 due to settlement, partial settlement, $10,000 due to settlement, partial settlement, transfer of issue(s), abandonment of issues(s)transfer of issue(s), abandonment of issues(s)

– Board does not retain jurisdiction if initial Board does not retain jurisdiction if initial $10,000 calculation falls below $10,000 due $10,000 calculation falls below $10,000 due to more accurate assessment of amount at to more accurate assessment of amount at issueissue

3333

Content of Hearing Content of Hearing RequestRequest

• Board may dismiss appeal with prejudice if Board may dismiss appeal with prejudice if all content criteria for the request are not all content criteria for the request are not metmet

• Request must include:Request must include:

– A demonstration that the Provider has a right A demonstration that the Provider has a right to hearing (i.e., has met the dissatisfaction, to hearing (i.e., has met the dissatisfaction, amount in controversy and timely filing amount in controversy and timely filing requirements);requirements);

– An explanation for each disputed item of why An explanation for each disputed item of why the Provider believes payment is incorrect, the Provider believes payment is incorrect, how and why payment should be determined how and why payment should be determined and, if self-disallowed or protested, the nature and, if self-disallowed or protested, the nature and amount of the item, and the and amount of the item, and the reimbursement sought; reimbursement sought;

3434

• A copy of the determination under appeal; A copy of the determination under appeal;

and, and,

For Group AppealsFor Group Appeals: If the Provider has any : If the Provider has any other Provider entities related to it, the name other Provider entities related to it, the name and address of its parent entity and a statement and address of its parent entity and a statement that, to the best of the Provider’s knowledge, no that, to the best of the Provider’s knowledge, no related Provider has a pending Board hearing related Provider has a pending Board hearing request on any of the same issues for the same request on any of the same issues for the same calendar year, or a statement that such a calendar year, or a statement that such a pending appeals exists, supplying the Provider pending appeals exists, supplying the Provider name(s), number(s) and case number(s).name(s), number(s) and case number(s).

3535

Adding Issues to an Existing Adding Issues to an Existing AppealAppeal

• Request must be received by the Board Request must be received by the Board no later than 60 days after the no later than 60 days after the expiration of the initial 180-day filing expiration of the initial 180-day filing periodperiod

• For appeals pending as of Aug. 21, For appeals pending as of Aug. 21, 2008, the deadline is the later of: 2008, the deadline is the later of:

(a) 60 days after the expiration of the (a) 60 days after the expiration of the 180-day period, or,180-day period, or,

(b) Oct. 20, 2008(b) Oct. 20, 2008

3636

Hearing Request FormatHearing Request Format(Rule 6, and See Model Form A-Individual Appeal (Rule 6, and See Model Form A-Individual Appeal Request)Request)

• Complete Model Form A - Complete Model Form A - Individual Appeal Request, Individual Appeal Request, answering all applicable questionsanswering all applicable questions

• Include all applicable supporting Include all applicable supporting documentationdocumentation

3737

Group AppealGroup Appeal

• Optional Groups: Two Or More Optional Groups: Two Or More Unrelated ProvidersUnrelated Providers

• Mandatory Groups: Common Issue Mandatory Groups: Common Issue Related Party (CIRP) GroupsRelated Party (CIRP) Groups

– As a matter of right, more than one FY can As a matter of right, more than one FY can be appealed to reach $50,000be appealed to reach $50,000

– At Board’s discretion to allow more than one At Board’s discretion to allow more than one FY for other purposes, such as convenienceFY for other purposes, such as convenience

3838

When Group Is Fully When Group Is Fully FormedFormed

• Mandatory (CIRP) Groups: Rule 19.2 Mandatory (CIRP) Groups: Rule 19.2 Absent notice from Providers, Board will issue Absent notice from Providers, Board will issue order requesting the group to show that at least order requesting the group to show that at least one Provider is still to be addedone Provider is still to be added

• Optional Groups: Rule 19.1 (12 months) Optional Groups: Rule 19.1 (12 months) Absent notice from the Providers, the Board will Absent notice from the Providers, the Board will issue an order that the group is formed,issue an order that the group is formed,ororwill issue general instructions that set forth the will issue general instructions that set forth the schedule for closing the appealschedule for closing the appeal– Board has discretion to grant or deny a request to join the Board has discretion to grant or deny a request to join the

groupgroup– Board can also modify an order closing the groupBoard can also modify an order closing the group

3939

TransfersTransfers

• Transferring From GroupTransferring From Group– If the request to join the group appeal was If the request to join the group appeal was

timely filed, but then denied, the request for timely filed, but then denied, the request for an individual appeal will be deemed to be an individual appeal will be deemed to be timelytimely

– If an issue is appealed as part of a group, no If an issue is appealed as part of a group, no longer will you be able to transfer the issue to longer will you be able to transfer the issue to an individual appealan individual appeal

• EXCEPT, where the group is later determined to not EXCEPT, where the group is later determined to not meet group jurisdictional requirements (failure to meet group jurisdictional requirements (failure to meet the $ or common issue requirements) meet the $ or common issue requirements)

4040

• Transferring Issue From Individual To Transferring Issue From Individual To GroupGroup

– An issue must be timely added to the An issue must be timely added to the individual appeal no later than 60 days after individual appeal no later than 60 days after the expiration of the 180-day appeal periodthe expiration of the 180-day appeal period

– But, a timely added issue later can be But, a timely added issue later can be transferred to a group appeal at ANY time transferred to a group appeal at ANY time prior to a decision in the individual appealprior to a decision in the individual appeal

4141

Group Model FormsGroup Model Forms

• See Model LettersSee Model Letters

– B: Group Appeal RequestB: Group Appeal Request– D: Request to Transfer To GroupD: Request to Transfer To Group– E: Request to Join Existing GroupE: Request to Join Existing Group– G: Schedule of Providers In GroupG: Schedule of Providers In Group

• Certifications can be modifiedCertifications can be modified

4242

Common Group IssueCommon Group Issue(Rule 13)(Rule 13)

• Single common issue of fact or Single common issue of fact or interpretation of law, regulation or CMS interpretation of law, regulation or CMS policy or rulingpolicy or ruling

• A group case is not appropriate if:A group case is not appropriate if:– Facts that must be proved for respective Facts that must be proved for respective

providers are unique; providers are unique; or or

– If the undisputed controlling facts are not If the undisputed controlling facts are not common to all common to all

4343

Pre-hearing Pre-hearing Proceedings:Proceedings:

Revised RuleRevised Rule

4444

Pre-HearingPre-Hearing

• Pre-hearing Proceedings Pre-hearing Proceedings ((42 C.F.R. §42 C.F.R. §405.1853)405.1853)

• Preliminary Narrowing Of IssuesPreliminary Narrowing Of Issues– Expeditious review by IntermediaryExpeditious review by Intermediary– Intermediary expeditiously attempt Intermediary expeditiously attempt

to join with Provider in resolving to join with Provider in resolving factual and legal issuesfactual and legal issues

– Submission of stipulations to the Submission of stipulations to the BoardBoard

4545

Parties - Duty to Confer Parties - Duty to Confer

Duty to Confer is prevalent in Regs and Rules

• Rule 10: FI duty on receipt of individual appeal to confer on stipulations• Rule 23: Conference implicit, indispensable to

JSO and duty ongoing• Rule 26.3: Discovery disputes• Rule 29: Prehearing conferences• Rules 30.3 and 31: Requests for

postponements and accelerated hearing• Rule 44: Motions

4646

Pre-hearing ProceduresPre-hearing Procedures(Rule 23)(Rule 23)

• Board acknowledgement will establish the first Board acknowledgement will establish the first filing due date for individual & optional group. filing due date for individual & optional group. (generally, about 8 months from filing for individual cases, 14 (generally, about 8 months from filing for individual cases, 14 months from filing for optional group cases, unknown for CIRP)months from filing for optional group cases, unknown for CIRP)

• By that date,By that date, parties must have chosen either, parties must have chosen either, to:to:

– File Preliminary Position Papers File Preliminary Position Papers , , or,or,

– Jointly agreeJointly agree to the Proposed Joint Scheduling Order to the Proposed Joint Scheduling Order (PJSO) option, (PJSO) option, or,or,

– Agree to Agree to mediatemediate case (Rule 43) case (Rule 43)

4747

Preliminary Position Papers Preliminary Position Papers OptionOption (Rule 23, required if no PJSO)(Rule 23, required if no PJSO)

• Preliminary position paper requirements Preliminary position paper requirements more stringent than in pastmore stringent than in past

• New arguments and documents not New arguments and documents not included in the preliminary position included in the preliminary position paper may be excluded at the hearing, paper may be excluded at the hearing, unlessunless– Agreement of partiesAgreement of parties– Good CauseGood Cause– RebuttalRebuttal– Published AuthoritiesPublished Authorities

4848

PJSO Option - ContentPJSO Option - Content (Rule 24)(Rule 24)

• Must cover all contingencies and Must cover all contingencies and include suggested month and year of include suggested month and year of hearinghearing

• Agreed dates become Board Agreed dates become Board deadlines, with the same sanctions as deadlines, with the same sanctions as Board established datesBoard established dates

• Dates (except hearing and FPP) may Dates (except hearing and FPP) may be modified by parties agreement be modified by parties agreement without Board approvalwithout Board approval

• Model Form F: Proposed JSOModel Form F: Proposed JSO

4949

PJSO Option – Board PJSO Option – Board AcceptanceAcceptance (Rule 24) (Rule 24)

• Notice of Hearing issued setting hearing Notice of Hearing issued setting hearing date and final position paper datesdate and final position paper dates

• Issuance of hearing date on or after Issuance of hearing date on or after requested hearing month/year will requested hearing month/year will constitute acceptance of all other proposed constitute acceptance of all other proposed JSO deadlinesJSO deadlines

• All deadlines controlled by parties JSO All deadlines controlled by parties JSO unless Board advises otherwiseunless Board advises otherwise

5050

Pre-hearing DiscoveryPre-hearing Discovery(Rule 26)(Rule 26)

Initial Discovery RequestInitial Discovery Request

Deadlines for requesting discovery set by:Deadlines for requesting discovery set by:

– Timelines set forth in 42 CFR §405.1853. Timelines set forth in 42 CFR §405.1853. Board my extend or modify dates on written Board my extend or modify dates on written motion. Date of Hearing Notice serves as motion. Date of Hearing Notice serves as ““initial hearing dateinitial hearing date” or” or

– A JSO approved by the Board, including A JSO approved by the Board, including parties’ written modificationsparties’ written modifications

5151

Board OversightBoard Oversight

• Board Actions If Party Fails To Comply Board Actions If Party Fails To Comply ((42 C.F.R. §42 C.F.R. §405.1868)405.1868)

– IntermediaryIntermediary• Issue decision based on written record submitted Issue decision based on written record submitted

to that pointto that point• Notify CMS and request that CMS to take Notify CMS and request that CMS to take

appropriate action, such as compliance reviewappropriate action, such as compliance review

– ProviderProvider• Board dismissalBoard dismissal• In writing and explain reasonsIn writing and explain reasons• Final and binding unless reversed, affirmed, Final and binding unless reversed, affirmed,

modified, or remanded by Administrator no later modified, or remanded by Administrator no later than 60 days after date of receiptthan 60 days after date of receipt

5252

Contact with the Board and Contact with the Board and StaffStaff(Rule 40) (Rule 40)

• Do not directly contact Board Do not directly contact Board members members (unless instructed, and then only (unless instructed, and then only with opposing parties present)with opposing parties present)

• Ex parte communications with Board Ex parte communications with Board staff regarding procedural matters staff regarding procedural matters are not prohibitedare not prohibited

5353

Intermediary Response to Intermediary Response to FilingFiling (Rule 10 )(Rule 10 )

• Once deadline for adding issues has passed:Once deadline for adding issues has passed:

– Intermediary is promptly to review appeal issuesIntermediary is promptly to review appeal issues– Notify Board of any jurisdictional challenge(s), their Notify Board of any jurisdictional challenge(s), their

reasons and related documentationreasons and related documentation– Confer with the provider re stipulationsConfer with the provider re stipulations

• Any other objections should be timelyAny other objections should be timely

• 42 C.F.R. §405.1853 directs parties to 42 C.F.R. §405.1853 directs parties to expeditiously join to resolve issues & reach expeditiously join to resolve issues & reach stipulationsstipulations

5454

Final Position PapersFinal Position Papers(Rule 27)(Rule 27)

• Regulations anticipate FPP will reflect Regulations anticipate FPP will reflect refinement of issues that began with refinement of issues that began with preliminary PP or PJSOpreliminary PP or PJSO

• Due dates set in Notice of HearingDue dates set in Notice of Hearing

– Provider; 90 days before hearing dateProvider; 90 days before hearing date– Intermediary; 60 days before hearing dateIntermediary; 60 days before hearing date– Provider response (if needed); 30 days before Provider response (if needed); 30 days before

hearing datehearing date

5555

• Arguments Expanding the Scope of Arguments Expanding the Scope of Final Position PapersFinal Position Papers

– If at hearing or in revised FPP party If at hearing or in revised FPP party expands scope, the Board, upon expands scope, the Board, upon objection may exclude arguments or objection may exclude arguments or evidence from considerationevidence from consideration

5656

Witness ListWitness List(Rules 28, 34)(Rules 28, 34)

• Filed with Board & opposing party Filed with Board & opposing party at least 30 days before hearingat least 30 days before hearing

• If expert witness:If expert witness:– Copy of expert’s resumeCopy of expert’s resume– Report from the expertReport from the expert

• Summarizes testimony; andSummarizes testimony; and• Bases supporting testimonyBases supporting testimony

5757

Pre-hearing Pre-hearing ConferencesConferences(Rule 29)(Rule 29)

• Status conference on Board’s own motionStatus conference on Board’s own motion

• Or, may be requested by either party Or, may be requested by either party prior to a hearing dateprior to a hearing date

• Purposes:Purposes:

– To narrow issuesTo narrow issues

– To discuss logistics to facilitate hearingTo discuss logistics to facilitate hearing

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• Parties expected to discuss the Parties expected to discuss the following following PRIORPRIOR to any pre- to any pre-hearing conference:hearing conference:

– Issues remainingIssues remaining– Amount in controversy-each issueAmount in controversy-each issue– Status of settlement discussions Status of settlement discussions – StipulationsStipulations– Evidentiary issuesEvidentiary issues– WitnessesWitnesses

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• Documentary evidenceDocumentary evidence• Request for telephone/video Request for telephone/video

testimonytestimony• Estimated length of hearingEstimated length of hearing• Audio & visual needsAudio & visual needs• Accommodations for disabled Accommodations for disabled

visitorsvisitors

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The HearingThe Hearing(and (and

alternatives)alternatives)

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Revised RuleRevised Rule

• Board Composition Board Composition • Quorum not required for oral hearingQuorum not required for oral hearing

(Chairperson may designate 1 or more (Chairperson may designate 1 or more Board Members)Board Members)

– More than one oral hearing at a time may be More than one oral hearing at a time may be conductedconducted

– Provider may waive oral hearing and stipulate Provider may waive oral hearing and stipulate to a decision on the record with Intermediary’s to a decision on the record with Intermediary’s agreement and Board approvalagreement and Board approval

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Hearing Hearing Dates/PostponementsDates/Postponements(Rule 30)(Rule 30)

• Hearing Notice will have set hearing Hearing Notice will have set hearing date & final position paper due datesdate & final position paper due dates

• Date of Notice serves as “initial Date of Notice serves as “initial hearing date” that governs deadlines hearing date” that governs deadlines for:for:

– Discovery - 42 CFR §405-1853(e)Discovery - 42 CFR §405-1853(e)– Subpoenas - 42 CFR §405.1857(a)Subpoenas - 42 CFR §405.1857(a)

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PostponementsPostponements(Rule 30.3)(Rule 30.3)

– Be ready for hearing or submit jointly Be ready for hearing or submit jointly signed statement that parties have signed statement that parties have entered into an Administrative Resolution entered into an Administrative Resolution pending approval by the ultimate pending approval by the ultimate approving authority (CMS, BCBSA)approving authority (CMS, BCBSA)

– A representation that settlement is A representation that settlement is imminent will not guarantee imminent will not guarantee postponementpostponement

– Change in case rep or late filing of motion Change in case rep or late filing of motion will not guarantee postponementwill not guarantee postponement

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Methods of AppearanceMethods of Appearance(Rule 32)(Rule 32)

• In-person hearingIn-person hearing• Telephone or video hearingTelephone or video hearing• Record hearing Record hearing

– When only issue is of legal interpretation, orWhen only issue is of legal interpretation, or– Very limited fact disputesVery limited fact disputes– If after approving request, Board later If after approving request, Board later

concludes case is not suitable for a record concludes case is not suitable for a record hearing, it will reset as another type of hearing, it will reset as another type of hearinghearing

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Accelerated HearingAccelerated Hearing(Rule 31)(Rule 31)

• May request when fully prepared to May request when fully prepared to present casepresent case

• Request should demonstrate:Request should demonstrate:– no outstanding discovery or motions, no outstanding discovery or motions, – documentation exchange is complete, documentation exchange is complete,

andand– whether non-moving party concurs with whether non-moving party concurs with

request for accelerated hearing daterequest for accelerated hearing date

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• If Board grants request parties are If Board grants request parties are expected to meet deadlines to expected to meet deadlines to accommodate the accelerated dateaccommodate the accelerated date

• The hearing date will be The hearing date will be considered a firm date!considered a firm date!

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Alternatives to Hearing -Alternatives to Hearing -MediationMediation(Rule 43)(Rule 43)

• Non-binding voluntary processNon-binding voluntary process• 95 % success rate95 % success rate• Quick hearing can be scheduled if Quick hearing can be scheduled if

mediation is unsuccessfulmediation is unsuccessful• Either party may request mediationEither party may request mediation• All due dates are suspended after All due dates are suspended after

appeal is approved for mediationappeal is approved for mediation• Held at intermediary locationHeld at intermediary location

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Alternatives to Hearing – Alternatives to Hearing – Expedited Judicial ReviewExpedited Judicial Review(Rule 42)(Rule 42)

• See Board Rule 42 for detailed See Board Rule 42 for detailed specific requirements (although it specific requirements (although it may be unlikely that EJR would be may be unlikely that EJR would be sought late in the hearing process)sought late in the hearing process)

• See 42 C.F.R. See 42 C.F.R. §405.1842§405.1842

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Transitional Transitional IssuesIssues

& Frequently & Frequently Asked QuestionsAsked Questions

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Transitional IssuesTransitional Issues

• AlertsAlerts– Alert 1: Automatic Extension of Position Paper Alert 1: Automatic Extension of Position Paper

Due dates.Due dates.– Alert 2: Clarification of Alert I (expanded to Alert 2: Clarification of Alert I (expanded to

differences between individual and group differences between individual and group appeal)appeal)

– Alert 3: Briefing schedule for issues added Alert 3: Briefing schedule for issues added after August 21, 2008 for cases pending prior after August 21, 2008 for cases pending prior to August 21, 2008.to August 21, 2008.

– Alert 4: Added issue prior to August 21-Alert 4: Added issue prior to August 21-Briefing schedule P-120; FI-60; P-rebuttal-30 Briefing schedule P-120; FI-60; P-rebuttal-30 prior to hearingprior to hearing

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Frequently Asked Frequently Asked QuestionsQuestions

• CIRP-To what time period is the relationship CIRP-To what time period is the relationship applicable?applicable?

• Adding Issues-can the 60 day limit be Adding Issues-can the 60 day limit be extended if more documentation needed?extended if more documentation needed?

• Will we dismiss appeals not filed in Will we dismiss appeals not filed in compliance with the new rules?compliance with the new rules?

• What effect of CIRP hospital’s in separate What effect of CIRP hospital’s in separate case being administratively resolved on case being administratively resolved on other CIRPs?other CIRPs?

• Email Filters may cause problemsEmail Filters may cause problems

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Thank you!Thank you!