On March 18, 2019, the Provider Reimbursement Review Board (PRRB) announced that it is inviting comments, suggestions, and other feedback in connection with five topic areas:  (1) continued implementation and improvement of the Office of Hearings Case and Document Management System (OH CDMS), which is the online portal for electronic filings and correspondence; (2) continued implementation of the final rule, published on November 13, 2015; (3) Board Rules 46, 47.2.2, and 47.2.3, which facilitate “withdrawal of Board appeals to pursue resolution through reopening of the related NPR [Notice of Program Reimbursement]/RNPR [Revised Notice of Program Reimbursement];” (4) Board Rules 20-22 relating to group appeals, including the Schedule of Providers and supporting documentation needed for the group appeals; and (5) Board Rule 42 relating to requests for expedited judicial review (EJR). The PRRB requests feedback on these issues be sent via email only to PRRB@cms.hhs.gov by May 1, 2019 and include in the subject line “Alert 17.” Alert 17, announcing the request for input, is available here. PRRB’s current Board Rules are available here.

Relevant aspects of the current Board Rules on these topics include the following:

1. Current Utilization of OH CDMS

Under the current Board Rules, electronic filing of appeals is not yet required, but is “strongly recommended.” Nevertheless, certain documents, such as the final schedule of jurisdictional documentation for group appeals, must still be filed in hard copy. The PRRB also issues its own communications electronically and sends appeal acknowledgments and decisions via email to appeal representatives, including representatives who are not registered for e-filing. PRRB is particularly “interested in user feedback and experience on using OH CDMS for Board proceedings and how Board processes and OH CDMS can be better aligned.”

1. Continued Implementation of the Final Rule, Published November 13, 2015

The final rule, published on November 13, 2015, made certain revisions to the PRRB’s governing regulations at 42 C.F.R. Part 405, Subpart R, including removing from the Board Rules the jurisdictional requirement that a provider has “claimed or protested” an item as a condition of filing an appeal, and instead, made that requirement a substantive cost report requirement. The appeal regulations were modified to specify that for “each specific item under appeal,” the provider must explain in its hearing request why, and describe how, the provider is dissatisfied with the specific aspects of the contractor’s determination. 42 C.F.R. § 405.1835. For self-disallowed items, the hearing request must explain the “nature and amount of each self-disallowed item,” the reimbursement sought for the item, and why the provider self-disallowed the cost instead of claiming reimbursement for the item. The Board Rules require that the PRRB’s factual findings and legal conclusions about whether there was an appropriate cost report claim for the item be included in the record of administrative proceedings for the appeal but must not be included in the PRRB’s decisions, orders, or other actions that pertain to jurisdictional matters. See 80 Fed. Reg. 70298, 70551-70580, 70597-70604 (Nov. 13, 2015).

1. Board Rules 46, 47.2.2, and 47.2.3 Regarding Withdrawal of PRRB Appeals to Pursue Resolution Through NPR/RNPR

The current Board Rules permit the withdrawal and subsequent reopening of an appeal in two circumstances. First, where the provider files an appeal, the Medicare contractor subsequently agrees to reopen the final determination on the issue(s) being appealed, the provider withdraws the appeal, but then the Medicare contractor fails to reopen the cost report as agreed. In this instance, the PRRB will reinstate the appeal after a showing by the provider of its request to reopen the final determination and the Medicare contractor’s agreement to do so. Second, an appeal can be reinstated where the provider simultaneously files a request to the Medicare contractor to reopen the final determination, along with an appeal and notice of withdrawal of appeal. In this instance, if the Medicare contractor refuses to reopen the appeal, the provider can reinstate the appeal upon a showing that it made the request to reopen and the Medicare contract denied that request.  

1. Board Rules 20-22 Relating to Group Appeals, Including the Schedule of Providers and Supporting Documentation Needed for Group Appeals

Board Rules 20-22 set forth the procedural filing requirements for group appeals, the content of what must be included in the appeals, and the time limits/review requirements for the Medicare contractor when reviewing group appeals.

1. Board Rule 42 Relating to Requests for EJR

Board Rule 42 permits providers to “bypass the Board’s hearing process and obtain [EJR] for a final determination of reimbursement that involves a challenge to the validity of a statute, regulation, or CMS ruling.” The EJR filing must be clearly labeled as such and identify the issue for which EJR is requested, demonstrate that there are no factual issues in dispute, demonstrate that the PRRB has jurisdiction, identify the controlling law, regulation, or CMS ruling; and explain why the PRRB does not have authority to decide the legal question. The EJR determination is made within 30 days after the request for EJR is complete and the PRRB determines it has jurisdiction.