Current PRRB Alerts
ALERT 23: Resumption of Normal Board Operations Following the COVID-19 Pandemic, Effective December 7, 2022; Request for Comments Regarding the Expedited Judicial Review Process (November 7, 2022)
On March 25, 2020, the Provider Reimbursement Review Board (“Board”) issued Alert 19 in response to the COVID-19 pandemic’s impact on providers and Board operations. Alert 19 announced that the Board and the Centers for Medicare & Medicaid Services (“CMS”) support staff were in maximum telework status and that the Board had implemented certain temporary changes to its operations and procedures, as described below. The Board recognizes and appreciates the way in which providers, Medicare contractors, their respective appointed representatives, and other stakeholders adapted over these past two plus years. These adaptations allowed for the business of the Board to continue, most notably through the use of electronic filings and virtual hearings. As the Board transitions to normal operations, the Board has determined that the Alert 19 temporary changes may be phased out and has issued Board Order No. 3 (available at PRRB Rules and Board Orders) to provide for this transition and to withdraw Alert 19 effective Wednesday, December 7, 2022.
This Alert addresses each element of Alert 19 and provides relevant information about the period of transition provided in Board Order No. 3. Finally, as explained in further detail under Section B of this Alert, the Board seeks feedback from all interested individuals, providers, government contractors, and other organizations on Board Rule 42 and Rule 44.6, which govern the process for requesting expedited judicial review (“EJR”).
- Board Filing Procedures
When the Board issued Alert 19 on March 25, 2020, providers were encouraged to file and correspond with the Board electronically using the Office of Hearings Case Document Management System (“OH CDMS”) due to the fact that Board staff would not be physically in the Board offices to accept and process hard copy filings. The Board subsequently revised its Rules pursuant to a regulatory change at 42 C.F.R. § 405.1801(d) and mandated electronic filing using OH CDMS, effective November 1, 2021. See Alert 21; Board Order No. 2. Therefore, because mandatory electronic filing remains in effect, Alert 23 has no impact on Board filing procedures.
- Board-Set Deadlines
In Alert 19, the Board suspended “Board-Set Deadlines” from Friday, March 13, 2020 forward, subject to the Board returning to normal operations. Effective Wednesday, December 7, 2022, Board Order No. 3 ceases suspension of deadlines and will hold parties to the deadline specified in: (1) any Board rule or instruction; and/or (2) any Board notice or correspondence issued on or after that date.
With respect to deadlines that were previously suspended pursuant to Alert 19, the Board appreciates that many parties continued to meet those deadlines. In some instances, as an interim measure, the Board issued notices or orders (original or revised) that were specifically designated therein as exempt from the Alert 19 suspension of Board-set deadlines. Board Order No. 3 confirms that these Alert 19-exempt deadlines remain unchanged and mandatory.
For those previously suspended deadlines (original or revised) which have not been met and which have not been reissued with deadlines specifically exempted from Alert 19, Board Order No. 3 specifies that the Board will issue revised Notices of Hearing or Notices of Critical Due Dates on a rolling basis over the next 6 months, establishing new deadlines consistent with current Board Rules. If you have questions regarding your Notice of Hearing, please submit them in correspondence through OH CDMS on your specific case or contact the Board Advisor assigned to your case. If you have questions regarding any other deadline or Notice, please submit them in correspondence through OH CDMS on your specific case.
Note: The suspension of Board-Set Deadlines in Alert 19 did not include the deadlines for filing of appeals or adding issues to appeals or any other deadlines established by statute or CMS regulation. As was the case when the Board issued Alert 19, the Board continues to retain authority pursuant to 42 C.F.R. § 405.1801(d)(2) to grant a provider’s request to extend the time period for filing an appeal, where the provider can establish that it could not have reasonably been expected to submit a hearing request within 180 days due to extraordinary circumstances beyond its control.
- Processing EJR Requests and Soliciting Comment on the EJR Process
In Alert 19, the Board expressed its intent to continue processing EJR requests received in OH CDMS within 30 days whenever possible. It also indicated that for purposes of calculating the 30-day period, it would exclude all days where the Board was not able to conduct its business in the usual manner pursuant to 42 C.F.R. § 405.1801(d)(2). Effective Wednesday, December 7, 2022, the Board is returning to normal operations and, accordingly, is not excluding any days on, or after, the effective date for that reason.
In anticipation of the Supreme Court’s June 24, 2022 decision in Becerra v. Empire Health Plan, No. 20-1312, 2022 WL 2276810 (S. Ct. June 24, 2022), the Board experienced a historic concentrated volume of EJR requests being filed with the Board. Based on this experience, the Board is reviewing the following rules relating to the EJR process for potential changes:
- Board Rule 42 addressing EJR requests; and,
- Board Rule 44.6 establishing special procedures for filing challenges (jurisdictional or substantive claim) in group cases when an EJR request is filed within 60 days of the final Schedule of Providers.
To facilitate this review, the Board is inviting comments, suggestions, and other feedback on its Rules, relating to EJR, from all interested individuals, providers, government contractors, and other organizations. Please note that the Board will review and consider all feedback but will not specifically respond to the feedback. To ensure that your feedback is considered as part of the Board’s current review, we ask that you submit it via email only to PRRB@cms.hhs.gov by Thursday, December 22, 2022. Please reference Alert 23 in the subject line of the email and describe in the email your role in the appeals process (e.g., provider, provider representative, consultant, or Medicare administrative contractor). The Board looks forward to receiving your feedback.
In the interim, the Board affirms that, on a case-by-case basis, it may consider and grant an extension of time under Board Rule 44.6 to the Medicare Contractor independent of the preset 20-day extension process currently provided in that Rule. Finally, the Board reminds parties appearing before the Board that 42 C.F.R. § 405.1842(b)(2) provides specific instruction as to when the 30-day EJR review period begins, stating:
[T]he 30-day period for the Board to make a determination under section 1878(f)(1) of the Act [i.e., 42 U.S.C. § 1395oo(f)(1)] does not begin to run until the Board finds jurisdiction to conduct a hearing on the specific matter at issue in the EJR request and notifies the provider that the provider's request is complete.
- Postponed or Rescheduled Hearings
In Alert 19, the Board announced the postponement of in-person and telephone hearings scheduled in April and May of 2020. Since that time, the Board has offered parties the option of participating in a virtual hearing and, effective November 1, 2021, formally adopted virtual hearings as a hearing option, in Board Rule 32.3. The Board will continue to make the virtual hearing option available, as appropriate under Board Rule 32.3, while also resuming in-person hearings at the Board’s offices in Baltimore, Maryland in the near future. If you have questions about your hearing options, please contact the Board Advisor assigned to your case.
- Reminder on Board Rule 20 Certification Requirement in Lieu of Traditional Schedule of Providers
The Board reminds parties appearing before the Board of the changes it made to the Rules governing the Schedule of Providers (“SoP”) effective November 1, 2021. Historically, the Board has required the group representative to file a hard copy SoP within 60 days of the full formation of the group. Board Rule 20 (as revised November 1, 2021) eliminated filing of SoP for group cases fully populated in OH CDMS (i.e., group cases in which all of the participants are populated under the Issues/Providers Tab in OH CDMS). However, in these instances, in lieu of the hard copy SoP, the group representative must file, within 60 days of the full formation of the group, “a statement certifying that the group is fully populated in OH CDMS with the relevant supporting jurisdictional documentation (i.e., all participants in the group are shown under the Issues/Providers Tab for the group in OH CDMS with the relevant supporting jurisdictional documentation).”
For those group cases that are not fully populated in OH CDMS (i.e., one or more participants is not populated under the Issues/Providers Tab in OH CDMS), Board Rule 20.1 (as revised November 1, 2021) requires the group representative to file both an electronic copy of the SoP in OH CDMS and a hard copy of the SoP within 60 days of full formation of the group.
ALERT 22: UPDATE – Mandatory Electronic Filing & Revised PRRB Rules, Effective November 1, 2021 (September 30, 2021)
On June 16, 2021, the Provider Reimbursement Review Board (“Board”) provided 120 days’ advance notice that it is adopting mandatory electronic filing effective November 1, 2021. In addition, the Board published revisions to Board Rules, effective November 1, 2021, and invited comments and other feedback from all interested parties on the revised Board Rules by Friday, July 30, 2021. Finally, the Board noted that: (1) it would review and consider all feedback but would not specifically respond to the feedback; and (2) based on its review of the comments, the Board might, as appropriate, further revise the Board Rules and, if so, would publish such revisions by Friday, October 1, 2021.
The Board appreciates the comments, suggestions, and other feedback it received from interested parties relating to both the Board Rules as well as OH CDMS. Based on its review of that feedback, the Board has decided to further revise the Board Rules to either correct certain identified errors or clarify the revisions to the Board Rules published on June 16, 2021. These additional revisions relate to Board Rules 4.4.3, 4.6.2, 5.4, 6.6, 7.3.2 - 7.4, 9, 20, 25, 25.3.1, 27.1, 28, 30.3.4, 31.1, 42.1, and 44.4.1 - 44.6.
The revisions to the Board Rules are effective November 1, 2021 and supersede all previous rules and instructions. Further, the Board reminds all parties appearing before the Board that mandatory electronic filing remains effective November 1, 2021. The revised Board Rules and related Board Order are located at PRRB Rules and Board Orders.
All prior alerts are available by download below.
PRRB Alerts (PDF)