Payment Matters

February 7, 2013

Supreme Court: Providers' Appeal Period Not Extended by Doctrine of Equitable Tolling

By: Thomas W. Coons

Under the Medicare statute and implementing regulation, providers have 180 days from the issuance of a Notice of Program Reimbursement (NPR) in which to file an appeal to the Provider Reimbursement Review Board (PRRB). This time limit has been strictly applied, subject to a narrow exception spelled out in the regulation for “good cause.” Providers have argued, however, that this time limit should be extended or “tolled” under certain circumstances, such as where there are allegations that the government or intermediaries made mistakes, deliberately did not reveal their mistakes, and effectively prevented the providers from becoming aware of the mistakes. The providers, however, have now lost that argument: On January 22, the Supreme Court held that the doctrine of equitable tolling does not apply in these circumstances. Sebelius v. Auburn Reg’l Med. Ctr., No. 11-1231 (U.S. Jan. 22, 2013) [PDF].

The Auburn case involved hospitals that tried to appeal their DSH determinations for fiscal years 1987-1994, after the PRRB ruled in the Baystate Medical Center case that there were flaws in the data underlying the DSH payment determinations. The PRRB dismissed the hospitals’ appeals as untimely, and the United States District Court for the District of Columbia agreed. The United States Court of Appeals for the District of Columbia Circuit, however, agreed with the providers and held that equitable tolling was available under the statute. The government then appealed to the Supreme Court, which reversed the Court of Appeals.

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Recent PRRB and CMS Administrator Decisions: A Summary for Providers

By: Leslie Demaree Goldsmith

In recently released decisions, the PRRB and the CMS Administrator addressed a number of issues of interest to many providers. Short summaries of those decisions are provided below. The PRRB and CMS Administrator post their decisions on their websites: PRRB decisions and CMS Administrator decisions.

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No Judicial Review of Contractor's Finding of a High Payment Error Rate, a Condition for Extrapolation

By: Mark A. Stanley *

Before a Medicare contractor can use extrapolation to determine an overpayment amount, the Medicare statute requires that it must make a finding that there is a sustained or high level of payment error or that documented educational interventions with the provider have failed. In Balko v. Sebelius [PDF],  the United States District Court for the Western District of Pennsylvania concurred with several other courts that have held that courts do not have jurisdiction to review a Medicare contractor’s finding of a high level of payment error, a prerequisite to extrapolation.

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Wage Index Appeals Due by Feb. 27

CMS published is final inpatient rule with a link to the wage indices for FFY 2013, in the August 31, 2012 Federal Register. Providers that wish to appeal their wage indices to the Provider Reimbursement Review Board must do so within 180 days of their publication, i.e., by February 27, 2013.

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