Current Alerts

CURRENT ALERTS

ALERT 8 - TRANSFERRING ISSUES  (December 8, 2011)

Effective immediately, the Board requires that the following supporting documentation be attached to a request to transfer an issue from an individual appeal to a group appeal:

* If the issue was included in the Provider's initial individual appeal request, you MUST attach a copy of the initial appeal request showing the issue was included in the original appeal to either your transfer request letter or Model Form D – Request to Transfer an Issue to a Group Appeal.

* If the issue was added to the Provider's pending individual appeal after the initial hearing request, you MUST attach a copy of the letter and/or a copy of the Model Form C (Request to Add Issue(s) to an Individual Appeal) you originally submitted to add the issue, to your transfer request letter or Model Form D – Request to Transfer an Issue to a Group Appeal.

In addition, the Board has revised Model Form D (Request to Transfer an Issue to a Group Appeal), to incorporate these new requirements.  You can download the revised Model Form D in Downloads under Instructions. 

ALERT 7 – PROCEDURES FOR IMPLEMENTING CMS RULING NO. CMS-1498-R (May 25, 2010)

The Provider Reimbursement Review Board (Board) requests your assistance in identifying all cases and/or issues pending in cases impacted by the Centers for Medicare and Medicaid Services Ruling No. CMS-1498-R (CMS-1498-R), which provides for a recalculation of your disproportionate share hospital (DSH) payment adjustment.  (You can view CMS-1498-R.pdf under Related Links Inside CMS at the bottom of this page.)

The Ruling addresses three issues:  (1) SSI fraction data matching process, (2) dual eligible days ("days where the patient was entitled to Part A benefits but the ... stay was not covered under Part A or ...  benefits were exhausted" (See CMS-1498-R at p 11), and (3) labor/delivery days.  If you have issues governed by the Ruling you will not be required to meet the due dates (including briefing and hearing dates) for those issues; however, you are still required to meet those due dates for all other issues remaining in the case.  The following procedures apply:

DEADLINES

*    On or before the position paper deadline:

(1)  Submit a letter to the Board and Intermediary

*    Identifying those issue(s) in your case that are governed by CMS-1498-R and therefore will not be briefed, and

*    to assist the Board in prioritizing, we would appreciate your advising us which remand procedure you prefer.

(2)  Brief the remaining issues, if any, in accordance with the Board's rules.  If in doubt about whether your issue is governed by the Ruling, brief it and include your position as to why it is or is not covered.

*    At least 30 days prior to the hearing date:  Advise the Board and Intermediary in writing of issues or cases that will not require a hearing because they are governed by the Ruling.  If you have not already received or requested a remand for the issues governed by the Ruling, state which remand procedure you select.

REMANDS

*    You may request a remand of the case (including groups) or an issue governed by the Ruling beginning immediately under either the "alternative procedure" described at page 19 of the Ruling, or the "standard procedure" described at page 18.

*    To assist the Board in expediting these requests, please put "REMAND REQUEST" and either "ALTERNATIVE PROCEDURE" or "STANDARD PROCEDURE" in the subject line.

*    If you select the alternative procedure, refer to Section 4.C of the Ruling for provider responsibilities under the alternative implementation procedure.  If you select the standard procedure, the Board will review jurisdiction based on the documentation in the record or, if necessary, will send a request for additional documentation.  Providers should have documentation readily available that is sufficient to show jurisdiction (timely filing, dissatisfaction, and amount in controversy) and to support the Schedule of Providers.

*    In order to process remands for as many cases as possible, requests under the alternative procedure will be given priority.  Without a request, the Board will review jurisdiction and remand under the "standard procedure" as expeditiously as possible in the regular course of business.

*    Group appeals, including CIRPS, may request remand even if the group is incomplete.

If you have a question not answered by this Alert, send us a letter (no e-mails or telephone calls, please) setting out the circumstances and your question with a copy to the Intermediary/MAC.  Be aware that the Board does not have any information about the Intermediary/MAC process or timelines beyond what is stated in the Ruling.  It is our understanding that CMS will be issuing further instructions to the Intermediaries/MACs regarding implementation in the near future.

ALERT 6:  BAYSTATE MEDICAL CENTER v. SHALALA - (March 23, 2010)

The Board is aware that the decision in Baystate Medical Center v. Shalala, 587 F.Supp. 2d 37 (D.D.C. 2008) (Baystate) has become final. The Board has placed many cases in abeyance for Baystate and directed providers to notify the Board within 60 days of the conclusion of the case if the cases in abeyance need to proceed to a hearing or if a settlement is expected. THIS NOTICE IS TO ADVISE PROVIDERS THAT HAVE CASES IN ABEYANCE PENDING A FINAL BAYSTATE DECISION THAT IT WILL NOT BE NECESSARY TO CONTACT THE BOARD REGARDING THE FINAL OUTCOME OF BAYSTATE. However, if jurisdictional documents have not been furnished to the Intermediary or the Board, we encourage you to do so promptly. The Board will notify providers when additional action will be necessary.

ALERT 5:  REVISION OF PRRB  RULES, CONTENT OF PROPOSED JOINT SCHEDULING ORDER (PJSOS), AND UPDATE OF PRRB MODEL FORMS - (July 1, 2009)

A.) REVISION OF PRRB RULES

The Board has made revisions to the PRRB Rules (See Rules 3, 4, 24 and 41) issued August 21, 2008.  The revisions are effective July 1, 2009.  These instructions supersede those previously issued. The changes to the PRRB Rules have been highlighted and dated with the effective date of the change.  The PRRB Rules can be downloaded below.

B.) CONTENT OF PJSO'S

Having reviewed PJSOs received to date, the Board has found that most PJSOs fully comply with Rule 24.  This Alert is to address those few exceptions that may jeopardize a right to appeal an issue.   

Transfers in PJSOs -

Rule 24, PJSO Content, requires a detailed schedule of actions to resolve each issue up to and including hearing.  A plan to transfer an issue in the future does not comply with Rule 24.1 in that it does not address material facts, legal positions on questions of law, data exchange, etc. 

If your JSO includes transfer of an issue, the transfer must be complete (with name, case number of the group to which the transfer was made and the date of the request (see Form D) by the JSO filing date. If no group is available for transfer by the JSO filing date, the JSO for that issue must comply with the content requirements in Rule 24.1.  If the transfer is not complete and the issue is not fully addressed as required by Rule 24.1, the issue is considered abandoned and dismissed from the case.

C.)  UPDATE OF PRRB MODEL FORMS

We have updated the PRRB model forms to make them more "user-friendly."  Please begin using the revised model forms as soon as possible.  We have also converted the revised model forms to a fillable PDF format, which can be found below under "Downloads."

ALERT 4: ADDED ISSUE (PRIOR TO AUGUST 21, 2008) POSITION PAPER DEADLINES) - (November 12, 2008)

If an issue was added to an appeal prior to August 21, 2008, after your final position paper was filed and the issue has not yet been briefed, a supplemental position paper that complies with the requirements of Rule 25 for the added issue is due as follows: 

*  Provider's supplemental position paper on the added issue - 120 days prior to hearing. 

*  Intermediary's responsive position paper on the added issue - 60 days prior to hearing. 

*  Provider's rebuttal (optional) - 30 days prior to hearing. 

Exception: If you have a hearing date scheduled on or before March 1, 2009, contact the Intermediary to work out a position paper schedule for the added issue. If no agreement can be reached, contact your Board Advisor. The position paper must meet Rule 27 requirements.

ALERT 3:  ADDED ISSUE DEADLINES - (October 3, 2008)

The following are deadlines applicable only to CASES PENDING BEFORE AUGUST 21, 2008, AND HAVE AN ISSUE ADDED ON OR AFTER AUGUST 21, 2008.  

In cases filed prior to August 21, 2008, if issues are added after that date pursuant to 73 FR 30240 (60 days after implementation of the Regulations or, as applicable, 60 days after expiration of the 180 day appeal deadline) but after position paper deadlines have already expired, a supplemental position paper that complies with the requirements of Rule 25 for the added issue is due as follows: 

     *   Provider's supplemental position paper - 120 days prior to hearing 

     *   Intermediary's response - 60 days prior to hearing 

     *   Provider's rebuttal (optional) - 30 days prior to hearing. 

EXCEPTION:  If you have a hearing date scheduled on or before March 1, 2009, contact the Intermediary to work out a position paper schedule for the added issue. If no agreement can be reached, contact your Board Advisor. The position paper must meet Rule 25 requirements.

ALERT 2: CLARIFICATION OF PRRB DEADLINES - (October 1, 2008) 

A.  Automatic Extension of Position Paper Due Dates - Individual Appeals

1. Alert 1: 2008 Automatic Extension of Position Paper Due Dates (August 13, 2008)
The August 13 2008 Alert only applies to preliminary and final position paper due dates set out in the initial "Acknowledgement and Critical Due Dates" letter. Any due dates set in a letter not labeled "Acknowledgement and Critical Due Dates" remain effective. (For example, expedited hearing schedules and previously extended due dates).

Providers who filed their preliminary position paper prior to September 1, 2008 have questioned whether the Intermediary still must file its preliminary position paper according to the originally established due date. The answer is no, the Intermediary's preliminary position paper due date is extended 6 months from the date that it was required to be filed under the notice given in the Acknowledgement and Critical Due Dates letter. If either the Provider or Intermediary's preliminary position paper is due (as set out in the initial "Acknowledgement and Critical Due Dates" letter) on or after September 1, 2008 this due date has been extended.

2.  How to Calculate Extensions: The Provider's Preliminary Position Paper is due 4 months after its current due date set out in the Acknowledgement and Critical Due Dates letter.  For example:  If the Provider's Current Preliminary Position Paper Due Date is November 1, 2008, the New Due Date would be March 1, 2009.

The Intermediary's preliminary position paper is due 6 months after its current due date set in the Acknowledgement and Critical Due Dates letter.  For example:  If the Intermediary's Current Preliminary Position Paper Due Date is November 1, 2008, the New Due Date would be May 1, 2009.

3.  Proposed Joint Scheduling Order:  In the alternative, prior to the new due date for the submission of the Provider's preliminary position paper, the parties may enter into a proposed Joint Scheduling Order (proposed JSO) pursuant to Rules 23 and 24. This document must be filed on or before the due date of the Provider's preliminary position paper. In instances where the Provider has filed a preliminary position paper on or before the September 1 due date but the Intermediary's preliminary position paper is not yet due, for purposes of this transition only (see Rule 23.3), the parties may file a proposed JSO on or before the due date for the submission of the Intermediary's Preliminary position paper.

4.  Final Position Papers:  If you received an Acknowledgement and Critical Due Dates letter dated prior to August 21, 2008 and your final position paper is due on or after September 1, 2008, neither the Provider nor the Intermediary is required to file their final position papers until the Board reassigns a final position paper due date when the case is scheduled for a hearing. The new due date for final position papers will be set forth in the Notice of Hearing. If you have already received a Notice of Hearing, it generally means that the final position papers have already been filed or your due dates have been specially set in a document other than an Acknowledgement and Critical Due Dates letter. In either case, the August 13, 2008, Alert would not apply.

B.  Due Dates for Position Papers When a Revised NPR Appeal is Combined with an Existing Appeal - Individual Appeals

Where a Provider has filed an appeal of a revised NPR (or other revised determination) which was incorporated into an existing appeal and it has not yet filed its position papers in accordance with the Acknowledgement and Critical Due Dates letter, it must brief all issues in accordance with the 4-month extension policy set forth above. If the Provider has filed its position paper and subsequently received a letter notifying it that the appeal of the revised determination has been incorporated into the existing appeal and supplemental position papers are to be filed, it is to file the supplemental position papers in accordance with the Board's Notice letter.

C.  Optional (Non-CIRP) Groups Filed Prior to August 21, 2008

1.  August 13, 2008 Alert:  The extensions granted in the August 13, 2008 ALERT apply to the preliminary position paper deadlines for optional groups set ONLY in Group Acknowledgement and Critical Due Dates letters dated before August 21, 2008.  Extensions granted in the August 13 Alert DO NOT apply to any deadlines previously extended by the Board.

Groups who filed their preliminary position paper prior to September 1, 2008 have questioned whether the Intermediary still must file its preliminary position paper according to the originally established due date. The answer is no, the Intermediary's preliminary position paper due date is extended 6 months from the date that it was required to be filed under the notice given in the Acknowledgement and Critical Due Dates letter. If either the Group's or Intermediary's preliminary position paper is due (as set out in the initial "Acknowledgement and Critical Due Dates" letter) on or after September 1, 2008 this due date has been extended.

2.  Other deadlines: The Schedule of Providers is due at the same time as the preliminary position papers (or the proposed JSO). This extension for position papers does not modify the 12 month cutoff for adding providers to the group.

3.  How to Calculate Extensions: The Group's Preliminary Position Paper is due 4 months after its current due date (set in the Acknowledgement and Critical Due Dates letter).  For example:  If the Group's Current Preliminary Position Paper Due Date is November 1, 2008, the New Due Date would be March 1, 2009.

The lead Intermediary's Preliminary Position Paper is due 6 months after its current due date (set in the Acknowledgement and Critical Due Dates letter).  For example:  If the lead Intermediary's Preliminary Position Paper due date is November 1, 2008, the New Due Date would be May 1, 2009.

The Board recognizes that the Group may have filed its preliminary position paper and questions if the lead Intermediary must now file its preliminary position paper according to the originally established due date. The answer is no, the lead Intermediary's preliminary position paper due date is extended 6 months from the date that it was required to be filed under the notice given in the Group Acknowledgement and Critical Due Dates letter.

4.  Proposed Joint Scheduling Order:  In the alternative, prior to the due date for the submission of the Group's preliminary position paper to the lead Intermediary, the parties may enter into a proposed Joint Scheduling Order (proposed JSO) pursuant to Rules 23 and 24. This document must be filed on or before the due date of the Group's preliminary position paper. In instances where the Group has filed a preliminary position paper on or before the September 1 due date but the lead Intermediary's preliminary position paper is not yet due, for purposes of this transition only (see Rule 23.3), the parties may file a proposed JSO on or before the due date for the submission of the lead Intermediary's Preliminary position paper. The Schedule of Providers and associated jurisdictional documents must be submitted to the lead Intermediary with either the Group's preliminary position paper or the proposed JSO.

5.  Final Position Papers: If you received a Group Acknowledgement and Critical Due Dates letter dated prior to August 21, 2008 and your final position paper is due on or after September 1, 2008 neither the Group nor the lead Intermediary is required to file their final position papers until the Board reassigns a final position paper due date when the case is scheduled for a hearing. The new due date for final position papers will be set forth in the Notice of Hearing. If you have already received a Notice of Hearing, it generally means that the final position papers have already been filed or your due dates have been specially set in a document other than a Group Acknowledgement and Critical Due Dates letter. In either case, the August 13, 2008, Alert would not apply.

D.  Optional (Non-CIRP) Groups that Received Group Acknowledgment & Critical Due Dates Letters Between August 21, 2008 and September 25, 2008

1.  Preliminary Position Papers: Groups that received Group Acknowledgement and Critical Due Dates letters dated August 21, 2008 through September 5, 2008 by e-mail had preliminary position paper due dates erroneously calculated based on the individual appeal due dates rather than group appeal due dates. To adjust those dates to the group appeal schedule, both parties have a six month extension to file preliminary position papers or a proposed JSO. This correction results in the Group preliminary position paper due date or proposed JSO being 60 days from the date the group must be fully formed (12 months after filing the appeal) and is consistent with other optional group appeal deadlines.

2.  Other deadlines: The Schedule of Providers and jurisdictional documentation must be filed at the same time as the preliminary position papers or the proposed JSO. All other dates in the Group Acknowledgement and Critical Due Dates letter remain the same.

3.  How to Calculate Extensions:  The Group's Preliminary Position Paper and Schedule of Providers is due 6 months after the current due date.  For example:  If the Group's Current Preliminary Position Paper Due Date is April 1, 2009, the New Due Date would be October 1, 2009.

The lead Intermediary's Preliminary Position Paper is due 6 months after the current due date.  For example:  If the Intermediary's Current Preliminary Position Paper Due Date is August 1, 2009, the New Due Date would be February 1, 2010.

E.  Optional (Non-CIRP) Groups Filed On or After August 21, 2008

The August 13, 2008 Alert has no application. Group cases filed after August 21 will have preliminary position papers (or proposed JSO) deadlines set approximately 60 days after the group is fully formed (i.e.12 months after filing).

You can expect the Group Acknowledgement and Critical Due Dates letter to establish the following approximate due dates:

12 months after filing: The group will be closed.

14 months after filing:  The Group must send the Schedule of Providers (see Appendix - Model Form G of Board's Rules) and supporting documentation with a cover letter to the lead intermediary. These documents must demonstrate that the Board has jurisdiction over the providers named in the group appeal. Send a copy of the Schedule of Providers and the cover letter (but not supporting documentation) to the Board. (See Appendix Model Form G and Board Rule 21.)

AND

Submit one of the following documents:

1.  To the Board:  A proposed Joint Scheduling Order (proposed JSO).  In this document, the Parties memorialize their written agreements and propose a scheduling plan covering all pre-hearing and hearing dates.  It must be signed by both parties and request a hearing month and year. See Board Rule 24 for proposed JSO requirements.

OR 

2. To the lead Intermediary:  The Group's Preliminary Position Paper. In addition, the Group must file with the Board (1) a copy of the cover page of the Preliminary Position Paper; (2) the preliminary documentation list; and (3) a statement indicating how a good faith effort to confer was made in accordance with 42 C.F.R. §405.1853 and Rule 25.

16 months after filing: The lead Intermediary must submit to the Board written notice indicating that it has reviewed the Schedule of Providers and the supporting documentation. This cover letter must state whether the issue is suitable for a group appeal and state whether jurisdictional impediments exist. Also, the lead Intermediary must forward the Schedule of Providers with the supporting documentation to the Board to become part of the official record. (See Board Rule 22)

18 months after filing: If a proposed JSO is not filed, the lead Intermediary's Preliminary Position Paper is due to the Provider. The lead Intermediary must file with the Board (1) a copy of the cover page of the Preliminary Position Paper; (2) the preliminary documentation list; and (3) a statement indicating how a good faith effort to confer was made in accordance with 42 C.F.R. §405.1853. See Board Rule 25 for Preliminary Position Paper requirements.

F.  Mandatory (CIRP) Groups Filed Prior to August 21, 2008

Under the Board's Instructions in effect prior to August 21, 2008, common issue related party (CIRP) groups were to be closed 12 months from the date of the group hearing request. Under the Board's Rules effective August 21, 2008, CIRP groups will not be considered fully formed until all providers in the CIRP group have been joined. This includes any CIRP group that was filed prior to August 21, 2008 and any CIRP group that has received an extension to file preliminary position papers, final position papers or Schedules of Providers with accompanying jurisdiction documents. The Group is to notify the Board when the group is fully formed, not later than 185 days after the last provider in the group has received its NPR. In its own discretion, the Board at any time may ask the Group to present evidence regarding whether there are CIRP providers who have not yet received NPRs as noted above.

CIRP groups which received a Group Acknowledgement and Critical Due Dates letter prior to August 21, 2008 and which are complete prior to the preliminary position paper due date set forth in the Acknowledgement letter must comply with the position paper due dates set forth above in the section for non-CIRP groups.

G.  Mandatory (CIRP) Groups Filed On or After August 21, 2008

The August 13, 2008 Alert has no application to these cases. You can expect the Group Acknowledgement and Critical Due Dates letter to set due dates at these approximate intervals:

2 months after notice of full formation:  Send a Schedule of Providers and supporting documentation with a cover letter to the lead Intermediary. These documents must demonstrate that the Board has jurisdiction over the providers named in the group appeal. Send a copy of the Schedule and the cover letter (without supporting documentation) to the Board. (See Appendix – Model Form G and Rule 21)

AND

Submit one of the following documents:

1.  To the Board:  A proposed Joint Scheduling Order (proposed JSO).  In this document, the Parties memorialize their written agreements and propose a scheduling plan covering all pre-hearing and hearing dates. It must be signed by both parties and request a hearing month and year. See Board Rule 24 for proposed JSO requirements.

OR

2.  To the lead Intermediary: The Provider's Preliminary Position Paper.  In addition, the Provider must file with the Board (1) a copy of the cover page of the Preliminary Position Paper; (2) the preliminary documentation list; and (3) a statement indicating how a good faith effort to confer was made in accordance with 42 C.F.R. §405.1853 and Rule 25.

4 months after notice of full formation:  The lead intermediary must submit to the Board written notice indicating that it has reviewed the Schedule of Providers and the supporting documentation. This cover letter must state whether the issue is suitable for a group appeal and state whether jurisdictional impediments exist. Also, the lead Intermediary must forward the Schedule of Providers with the supporting documentation to the Board to become part of the official record. (See Rule 22)

6 months after notice of full formation:  If a proposed JSO is not filed, the lead Intermediary's Preliminary Position Paper is due to the Provider. The lead Intermediary must file with the Board (1) a copy of the cover page of the Preliminary Position Paper; (2) the preliminary documentation list; and (3) a statement indicating how a good faith effort to confer was made in accordance with 42 C.F.R. §405.1853. See Board Rule 25 for Preliminary Position Paper requirements.

ALERT 1: AUTOMATIC EXTENSION OF POSITION PAPER DUE DATES - (August 13, 2008)

If you received an acknowledgement letter prior to August 21, 2008 which set preliminary or final position paper due dates that fall due on or after September 1, 2008, the Provider's preliminary position paper deadlines (or proposed JSO) is extended by four months from the original due date.  If a jointly executed proposed JSO is not filed by this 4 month extension, the Intermediary's preliminary position paper due date will be extended by six months from the original due date as noted in the acknowledgement letter.

The parties may disregard any final position paper due dates set in acknowledgment letters issued before August 21, 2008.  Final position paper due dates will be reset in the Board's Notice of Hearing.

Example:  An acknowledgement letter issued August 5 would set the Provider's and Intermediary's preliminary due dates as December 1 and February 1 respectively.  Both parties' final position papers would have been due on April 1.   Under this scenario, the parties would have to submit either a jointly signed proposed JSO or a provider preliminary position paper by April 1 and if a proposed JSO was not submitted, the intermediary preliminary position paper would be due 6 months from the original due date or on August 1.  In either case, the original final position paper due dates would be suspended and new dates will be set in the Board's Notice of Hearing.

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Related Links Inside CMS
CMS RULING NO. CMS-1498-R
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