Payment Matters: Recent GME/IME Case: Proceed with Caution in Use of Stipulations

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Stipulations streamline evidentiary proceedings by eliminating the need to introduce documents and testimony in supporting facts and propositions that are uncontested. As a result, administrative tribunals often encourage litigants to stipulate to both facts and to the application of those facts to legal principles. For example, the Provider Reimbursement Review Board (PRRB or Board) rules encourage parties to file written stipulations in advance of a hearing to assist the parties and Board members to prepare for the hearing. The government’s position taken in recent cases, however, suggests that providers should be cautious in relying on stipulations before the PRRB and possibly other tribunals.

In cases before an administrative tribunal, such as the PRRB, the parties are establishing a record that will form the basis for not only the tribunal’s decision but also the further review of that decision. In the Board’s proceedings, the Secretary’s agent – the Medicare contractor – presents the “government’s case” and takes positions that would appear to be those of the Secretary and CMS. In so doing, the contractor’s representative decides which arguments to make, which evidence to present, and which stipulations, if any, to make. These decisions, one might think, are binding on CMS. According to CMS, however, they are not.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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