PRRB Releases New Reinstatement Rules

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Effective July 1, 2015, the Provider Reimbursement Review Board (PRRB or Board) has promulgated new rules regarding the reinstatement and withdrawal of appeals before the Board.  The most significant change is a new rule allowing providers to seek reinstatement of issues withdrawn pursuant to an agreement with the Medicare Administrative Contractor (MAC) to reopen the cost report to address an issue, but where the MAC fails to do so.  Under the new rules, a provider may file a motion for reinstatement of the appeal, providing written evidence of the MAC’s agreement to reopen on the condition that the provider withdraw the appeal. 

This rule is welcome news to providers.  MACs frequently deny providers’ requests to reopen cost reports on the basis that the issue for which reopening is requested is also the subject of an appeal before the Board, but state they will consider reopening if the appeal is withdrawn.  MACs have adopted this policy despite the fact that CMS has been clear in Federal Register preamble statements that MACs are not precluded from considering a reopening on an issue merely because the issue is also the subject of an appeal.  The MACs’ policy presents providers with a dilemma: dismiss the appeal and forgo appeal rights, or continue with an appeal that may take many years to resolve.  The dilemma is made worse by the fact that providers do not have a right to challenge a MAC’s decision to deny a request to reopen a cost report and, therefore, they have no remedy if the MAC reneges on any agreement to reopen. 

The Board’s new rule is intended to give providers some relief in such cases.  There is one wrinkle with the new Board rule, however—providers must present a “copy of the correspondence from the Intermediary where the Intermediary agreed to reopen the final determination for that issue(s).”  PRRB Rule 46.2(B).  Whether MACs will put their agreement to reopen in writing remains to be seen.  Finally, the motion for reinstatement must also be filed within three years of the date the PRRB received the withdrawal from the provider.  PRRB Rule 46.1; see also 42 C.F.R. § 405.1885.

The Board also included other significant changes with its July 1, 2015 update.  While the time limit to seek reinstatement of any dismissed or withdrawn appeal remains the same (three years from the PRRB’s dismissal or the provider’s withdrawal of the issue), new rules require that a motion for reinstatement be filed.  The prior rule only required that the request be in writing. Under the new rules, any request for reinstatement must comply with the PRRB rule governing motions (PRRB Rule 44), which requires providers to specifically set forth the legal and factual basis for the reinstatement and to include supporting documentation.  The new PRRB rules also bar reinstatement of appeals if the provider was at fault.  For cases that were remanded pursuant to a CMS ruling, the PRRB now requires the provider to address whether the CMS ruling permits reinstatement of each case or issue.  See PRRB Rule 46.1.

The PRRB has also set forth explicit withdrawal filing requirements.  All withdrawals must now describe the issue being withdrawn, indicate if the withdrawal is the result of an administrative resolution or agreement to reopen, and confirm if there are any remaining open issues and the status of those issues.  Similar to a motion for reinstatement, when a provider withdraws an issue or case pursuant to an administrative resolution or agreement to reopen, providers must include a copy of the administrative resolution or correspondence where the MAC agreed to reopen the issue under appeal.  Providers should note that a decision acknowledging the withdrawal will not be issued by the PRRB if the withdrawal does not result in closure of the appeal.  See PRRB Rule 48.

Reporters, Mark Polston, Washington, D.C., + 1 202 626 5540, mpolston@kslaw.com, and Catherine Greene, Summer Associate, Washington, D.C., +1 202 626 9556, cgreene@kslaw.com.

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