On August 29, 2018, the Provider Reimbursement Review Board (PRRB) announced significant new changes to the rules governing its appeals, effective immediately.  The rules apply to both newly filed and pending appeals, and failure to follow could result in the loss of appeal rights.  The 90-page document makes a number of technical changes, the most significant of which are the roll out of electronic filing, changes to the way papers are to be filed, and the submission of support for self-disallowed items from the cost report.

Electronic Filing

Although electronic filing is not yet required for providers, it is “strongly recommended,” and the PRRB does not indicate at what point it may become mandatory.  Registering for electronic filing requires several steps, and providers (or, more likely, their representatives) are wise to begin the process.  Once registered, representatives may file appeal documents through 11:59 pm Eastern, whereas hard copy filing must be effectuated while the PRRB mail room is open, 8:00 am to 4:00 pm Eastern.  Until further notice, the final schedule of jurisdictional documentation, a requirement for group appeals, continue to be filed in hard copy.  The PRRB has already begun issuing its own communications electronically and submitting appeal acknowledgements and decisions via email to appeal representatives, although the representative need not be registered for e-filing to receive these communications.

Position Papers

Under the prior rules, the provider and Medicare Administrative Contractor (MAC) exchanged preliminary position papers, but only filed with the PRRB the first page and the list of exhibits.  Now, the parties are to file the full paper and exhibits with the PRRB and, under the rules, “[n]ew arguments and documents not included in the preliminary position paper may be excluded at hearing unless the parties demonstrate good cause.”  Thus, the arguments and exhibits should be fully developed at the time of this initial filing.  While still mandatory for pending appeals, final position papers will become optional moving forward, to be used “to narrow or resolve the issues remaining in dispute, update legal authorities, etc.”  The PRRB will have discretion to exclude new arguments/evidence from consideration if introduced at hearing.

Self-Disallowed Items

In the CY 2015 Outpatient Prospective Payment System final rule, CMS adopted a new paragraph to 42 C.F.R. § 413.24, which made claiming or protesting an item on the cost report a condition of payment, and no longer simply a prerequisite for PRRB jurisdiction, effective for cost reporting periods beginning on or after January 1, 2016.  Starting with that date, providers must include an appropriate claim for a specific item on its cost report—either by affirmatively claiming reimbursement or expressly self-disallowing the cost by filing the item under protest—to be eligible to receive Medicare reimbursement.  The PRRB’s new rules now reflect these requirements.  For cost reporting periods predating January 1, 2016, the rules acknowledge that CMS Ruling 1727-R governs.  Ruling 1727-R recognizes that, for appeals for cost reporting periods ending on or after December 31, 2008, and before January 1, 2016, if the appeal was pending or filed after April 23, 2018, a provider has a right to a PRRB hearing, notwithstanding the provider’s failure to follow the disallowance regulation, as long as the MAC was bound by the policy being appealed.  For appeals of cost reporting periods January 1, 2016, or later, the PRRB will allow providers “an adequate opportunity to submit factual evidence and legal arguments” regarding whether an appropriate cost report claim was made before making a written determination.

Other Requirements

The new rules also discuss a number of other technical requirements, including:

• If appealing the same issue from different determinations (i.e., a Notice of Program Reimbursement (NPR) and revised NPR) in the same fiscal year, they must be brought in the same appeal.
• Rulemaking appeals must be brought within 180 days of the rule’s publication in the Federal Register.  The provider must identify the portion of its own cost reporting period(s) covered by the rulemaking.
• Transfers into groups must be effectuated prior to the filing of the preliminary position paper.
• At live hearing, the PRRB may require closing argument and encourage the use of visual aids.  The PRRB may allow for post-hearing briefs to be submitted by the parties only if requested by the PRRB.

The revised PRRB rules are available here.  Alert 15, announcing the change, is available here.  Further information regarding e-filing is available here.