In the June 25, 2004, Federal Register, CMS issued proposed changes to the regulations governing appeals of reimbursement determinations to the Provider Reimbursement Review Board (Board) and intermediaries. 69 Fed. Reg. 35,716 (June 25, 2004). Comments were due August 24, 2004. CMS stated its intention that the new rules would reduce Board backlog, clarify CMS's position on certain matters, and eliminate outdated materials. Highlights from the proposed rules are discussed below.

Calculating Time Periods for Filing
Calculations of time periods for filing would generally begin the date the party receives the triggering notice. The end of the period would generally be the date the reviewing entity receives the party's submission. The date of receipt would be presumed to be five days after the postmark, which could be rebutted if a preponderance of the evidence demonstrates receipt on a later date. Date of receipt by the reviewing entity would be presumed to be the date it was stamped as received, which could be rebutted if a preponderance of the evidence demonstrates receipt on a different date. This is a change from the current rules, which allow a provider to timely file by placing its appeal in the mail on the 180th day. The date of receipt by the party who wishes to appeal would not be included in the number of days allotted for appeal.

Appeal of Self-disallowed Amounts
Under the proposed rules, in order to maintain a claim of provider dissatisfaction, which is necessary for the Board to have jurisdiction to hear an appeal of that claim, a provider would be required to claim the costs which it seeks either on its cost report where it is seeking reimbursement or as a protested item on its cost report. Self-disallowances not noted as a protested amount would no longer be appealable. Further, self-disallowances would be defined to include not only when a provider totally foregoes a claim but also where a provider claims less than the full amount to which it believes it is entitled. Items claimed as protested amounts on a cost report would not be audited by the intermediary and would, therefore, be subject to audit after a successful appeal by a provider.

Adding Issues to an Appeal
In one of the most significant proposed changes to the rules, providers would no longer be permitted to add issues to an appeal any time prior to a hearing. Rather, they would be permitted to add issues to an existing appeal only when 240 or fewer days have passed since receipt by the provider of the determination appealed. CMS asserts the need to reduce backlog at the Board as the impetus for this provision. Providers will now need to include appeals of all issues they potentially wish to pursue very early in the process.

Good Cause Extensions for Filing of Appeals
CMS proposed three changes to the existing rules: (1) requests for extensions must be received by the reviewing entity within a "reasonable time," which CMS does not define; (2) extensions may be granted only when a provider demonstrates it could not reasonably have been expected to submit a hearing request within the 180-day time period due to extraordinary circumstances beyond its control, such as a natural or other catastrophe, fire, or strike; and (3) a determination by the Board or Administrator regarding an extension is not subject to judicial review.

Group Appeals
Many of the current rules employed by the Board for group appeals are included as proposed regulations. In addition, mandatory group appeals, i.e., appeals brought by commonly owned or controlled providers, would have to be initiated as a group, rather than initiated as individual appeals and later transferred into groups appeals. The proposed rules would permit the addition of providers into a group any time up until the Board renders a decision in the case.

CMS Involvement in Hearings
Although CMS would not be permitted to act as a party to a hearing, a representative from CMS, who may be an attorney, may be designated by the intermediary to defend the intermediary's position in proceedings before the Board.

Quorum Requirements
Under the newly proposed rules, the Board Chairperson could designate one Board member to conduct a hearing, without the necessity of obtaining the parties' approvals to assign less than a quorum (three members, one of whom is a provider representative) to conduct the hearing.

Board Action for Failure to Follow Board Rules
The Board's ability to dismiss a case when a provider fails to timely meet any filing or procedural deadline would continue. However, when an intermediary fails to timely file its position paper, a new provision would permit the Board to issue a decision based on the record as filed at that date Additional time for late filing by providers and intermediaries would be considered for good cause.

Reopening Procedures
CMS availed itself of the opportunity to reiterate its position that CMS has the ultimate authority to determine when an intermediary decision may be reopened. In order for CMS, the intermediary, or a reviewing entity to reopen on its own motion, a notice of reopening must be mailed no later than three years after the date of the original determination or decision. A provider request for reopening is considered timely when received by the reviewing entity within three years of the date of the rendering of the original decision, although the actual reopening may occur after that three-year period has expired. Reopenings involving fraud or similar fault continue to have no time limitation period. Additional provisions clarify CMS's policy that items within the scope of a reopening that are not revised, are not appealable through any revised determination issued after the reopening.

Potential Revisions
CMS is considering making three additional revisions to the regulations. First, it is considering explicitly setting forth that ex parte communications with a Board staff member regarding procedural matters would not be prohibited. Second, CMS suggests that when a party's counsel has a conflict of interest, the appropriate remedy would be to order such party to show cause why the case should not be dismissed. Such a remedy seems unduly broad and heavy handed. Furthermore, this penalty would unfairly be applied against only one party - the provider - as there is no penalty to an intermediary when a provider's case is dismissed. Third, when an intermediary's denial of reimbursement is reversed, CMS may require the intermediary to determine the reimbursement effect of the allowed claim. Similarly, when the intermediary denies reimbursement for a claim on one basis, which is reversed, the intermediary would then have the opportunity to determine whether the reimbursement should be disallowed for any other reason. These opportunities to reaudit are contrary to CMS's stated intent in the preamble to move these cases along faster, and they give the intermediary multiple bites at the apple.