Court Finds No Right of Appeal Where Intermediary Refused to Reopen

In a decision issued last week, the Seventh Circuit Court of Appeals upheld the decision of the district court that the Provider had no right to appeal an issue that the Intermediary did not take steps to affirmatively reopen. Little Company of Mary Hospital v. Sebelius, No. 09-1665 (7th Cir. filed Nov. 24, 2009). The appeals court also upheld the lower court's denial of the Provider's discovery requests.

Little Company of Mary Hospital (Little Company) asked its Medicare fiscal intermediary (Intermediary) to reopen the hospital's 1998 cost report to reconsider its disproportionate share hospital (DSH) Medicaid Fraction calculation and its DSH SSI Fraction calculation. The Intermediary issued a Notice of Reopening to include additional days in the Medicaid Fraction but did not mention the SSI Fraction. The Intermediary subsequently issued a revised Notice of Program Reimbursement (NPR), adjusting the Medicaid but not the SSI Fraction. Leslie Demaree Goldsmith of Ober|Kaler discusses.