PROVIDER REIMBURSEMENT REVIEW BOARD

INSTRUCTIONS

P.O. Box 31712
Baltimore, MD 21207-8712

7500 Security Boulevard, Room C1-09-13
Baltimore, MD 21244-1850

410.786.2671
410.786.5298 (fax)
www.hcfa.gov/regs/prrb.htm

PROVIDER REIMBURSEMENT REVIEW BOARD

INSTRUCTIONS

Introduction

The Provider Reimbursement Review Board's (Board) Instructions for providers and intermediaries engaged in appeals before the Board are attached. These Instructions supersede the manual provisions previously found at Provider Reimbursement Manual, Part I (HCFA Pub. 15-1) §§ 2920 through Appendix A, which follows § 2926.6.

The Instructions, which implement section 1878 of the Social Security Act and the regulations at 42 C.F.R. §§ 405.1835 - .1873, are divided into three parts. Each part has a table of contents for easy access to a specific subsection. Both pages and sections are numbered. The date following each section is the effective date of that section. As revisions occur, the date on the section revised will change.

Part I contains sections dealing with the Board's authority, the right to and request for a hearing before the Board, the Board's procedures for pursuing an appeal, the Board's mediation procedures, and the Expedited Judicial Review process.

Part II discusses prehearing discovery and position papers.

Part III describes various aspects of the hearing itself.

The Board may revise any or all of these Instructions to reflect changes in the law, the regulations, or the Board's policies and procedures. These and any updates will be available on the Internet at www.hcfa.gov/regs/appeals. You may also obtain copies from the Board and your fiscal intermediary.

PROVIDER REIMBURSEMENT REVIEW BOARD

INSTRUCTIONS

PART I.

PROVIDER REIMBURSEMENT REVIEW BOARD

INSTRUCTIONS

PART I

A. The Provider Reimbursement Review Board

I. Authority

II. Scope of Board's Decision Making Authority

B. Right to and Request for a Hearing before the Board

I. Right to a Hearing Before the Board

a. Individual Appeals

b. Group Appeals

II. Request for a Hearing Before the Board

a. Initial Hearing Request for Individual Appeals

b. Initial Hearing Request for Group Appeals

C. Board Policies and Procedures for Pursuing an Appeal

I. Board's Acknowledgment of an Initial Hearing Request

II. Communications

III. Letter of Representation

IV. Home Office Issues

V. Accelerated Hearing Requests

VI. The Board's Jurisdiction

VII. Adding of Issues to an Existing Appeal

VIII. Adding Providers to and Closing of Group Appeals

IX. Postponement of Proceedings

X. Withdrawing an Appeal

XI. Reinstatement Requests

a. Reinstatement -- Settlement Agreement

b. Reinstatement -- Board Dismissal

XII. Parties' Responsibilities

D.Mediation

E. The Expedited Judicial Review Process

I. Request for Expedited Review

II. Board Action on Your Request

III. Effect of Board Determination

Attachment A - Group Schedules

Schedule of Providers in Group

List of Providers with Jurisdiction Problems.

A. The Provider Reimbursement Review Board

The Provider Reimbursement Review Board (Board) was established by the Social Security Amendments of 1972 (Pub. L. 92-603) as a national, independent forum for hearing and deciding payment disputes between you, the provider, and your intermediary (the parties). The Board provides the parties to the dispute with fair notice and an equal and ample opportunity to present their respective positions. The Board's procedures afford the parties their due process and equal protection.

The Board will act upon every case brought before it. Generally, it will either dismiss the request for failing to meet jurisdictional or procedural requirements; acknowledge a withdrawal request; or schedule a hearing on the issues in dispute. [May 1, 2000]

I. AUTHORITY

The Board, in exercising its authority, complies with the provisions of title XVIII (Medicare) of the Social Security Act (Act), the Medicare regulations, and HCFA Rulings. The Board is not bound by the general instructions issued by HCFA. However, it gives great weight to those instructions and all interpretive rules, general policy statements, and rules of the HCFA organization in making its decisions, or determinations.

The Board also makes its own rules and establishes procedures in order to provide an open and equitable avenue of appeal for both parties and to manage the appeals inventory. The Board applies its procedures uniformly and expects them to be followed during the course of an appeal. [May 1, 2000]

II. SCOPE OF BOARD'S DECISION MAKING AUTHORITY

The Board may affirm, modify, or reverse, wholly or in part, final determinations of the intermediary or the Secretary of the Department of Health and Human Services (DHHS) (for limitations on the Board's authority, see Part I, E. The Expedited Judicial Review Process). The Board may also make other modifications on matters covered by a cost report even though the intermediary did not consider those matters in making its final determination.

The Board expects you and the intermediary, in accordance with the regulations, to communicate early and attempt to negotiate areas of misunderstanding and difference. The Board is not the forum for deciding frivolous disputes. [May 1, 2000]

B. Right to and Request for a Hearing Before the Board

Only you as an individual provider or as a group of providers may request and receive a hearing before the Board under section 1878 of the Act (42 U.S.C. §1395oo) for a cost reporting period for which you have filed a cost report. Intermediaries, although parties to an appeal, may not request a Board hearing.

You may ask for a hearing on both factual and legal issues involving the way the intermediary applies provisions of title XVIII of the Act, the regulations, Health Care Financing Administration (HCFA) Rulings, program instructions, and other relevant authorities in determining your payment. You have a right to a Board hearing, provided your request complies with certain criteria. [May 1, 2000]

I. RIGHT TO A HEARING BEFORE THE BOARD

You may ask for and obtain a Board hearing on an issue or issues pertaining to items and services furnished a Medicare beneficiary that are covered by Medicare. Your appeal must also meet specific jurisdictional requirements and you must follow Board procedures. The Board wants to stress that it follows the practice of other appeal avenues by not managing the parties' appeals. The parties themselves, once informed of Board procedures and due dates, are responsible for complying with all Board requirements.

You may not appeal certain subject matters, as limited by section 1878(g) of the Act. You may not appeal issues involving the establishment of diagnosis-related groups (DRGs), DRG discharge classification methodologies, DRG resources, weighting factors, or any budget neutrality adjustment in prospective payment rates. The Board is also precluded from accepting jurisdiction over certain issues including, among others, the validity of the provider agreement and an interim rate of payment established by the intermediary. [May 1, 2000]

a. Individual Appeals

You must be dissatisfied with a final determination of the intermediary or the Secretary of DHHS (who has delegated this responsibility to HCFA) or the lack of a final determination for a period for which you have filed a cost report. If you appeal a Notice of Amount of Program Reimbursement (NPR) and a revised NPR for the same fiscal year, the Board will combine them into one appeal.

In addition to appealing from a final determination, the reimbursement effect (amount in controversy) with respect to matters for which you have requested a Board hearing must be at least $10,000 for the cost reporting period under appeal.

You must also file your request for a hearing within 180 calendar days after the date of receipt of the determination being appealed. The Board presumes that you have received notice of your final determination within five days of the date of its issuance, unless you present evidence to rebut the presumed five-day period. You must mail your request no later than close of business on the 180th calendar day after receipt of the determination in dispute. When the 180th day falls on a week-end, legal holiday, or any other day all or part of which is declared a nonwork day for federal employees, the Board considers your request to be timely if it is mailed on the first full workday thereafter. The Board's receipt date is the day it stamps your hearing request "Received" or the date written as "received" on your certified mail return receipt.

If you are appealing the intermediary's failure to issue an NPR timely, you must request a hearing within 180 days of the expiration of the 12-month period following your filing of a perfected or amended cost report (as permitted or as required) with the intermediary. The Board can consider your request only if you did not cause the delay and the amount stated on the cost report as the amount of intended program payment due is at least $10,000. [May 1, 2000]

b. Group Appeals

You and at least one other provider may request a group appeal. Such an appeal is called an "optional" group appeal. A group appeal consists of one issue only involving a question of fact or an interpretation of law, regulation, or HCFA ruling, which is common to all providers in the appeal. If there are factual differences among the providers, the issue is not a valid group appeal issue. For example, bad debts, exception issues, and reconciliation issues are among the issues that are inappropriate for a group appeal.

Each provider in a group appeal must satisfy the jurisdictional requirements, except for the $10,000 criteria, for an individual request for a Board hearing. The aggregate claims in dispute must total at least $50,000.

If you and other providers are under common ownership or control and have an issue in common, you must file a group appeal if the amount in controversy is $50,000 or more. These are known as Common Issue-Related Party or CIRP appeals and are "mandatory" group appeals. If the amount is less than $50,000, then you and the other providers may file individual appeals as long as you meet all jurisdictional requirements, including that for $10,000 in dispute, for individual appeals before the Board.

You or any single provider may appeal issues not common to other providers in the group on an individual basis. You should note that the filing of a group appeal does not constitute a timely filing for an individual appeal.

A group appeal should involve a single fiscal year and one cost report per provider. However, when a group of providers, either under the optional or mandatory guidelines, cannot meet the requisite jurisdictional amount of $50,000, the providers may combine more than one fiscal year to comply with this criteria.

You should not be a party to more than one group appeal on the same issue. [May 1, 2000]

II. REQUEST FOR A HEARING BEFORE THE BOARD

You must file a written request with the Board for a hearing before the Board. The Board does not accept facsimile transmission of your initial request.

You must send your request, and any further correspondence, to:
(If sent by U.S. Postal Service) (If sent by courier service)
Chairman Chairman
Provider Reimbursement Review Board Provider Reimbursement Review Board
P.O. Box 31712 7500 Security Boulevard, Room C1-09-13
Baltimore, MD 21207-8712 Baltimore, MD 21244-1850

You must simultaneously submit a copy of the request to your intermediary. You should send the Board only the original of your request. [May 1, 2000]

a. Initial Hearing Request for Individual Appeals

Your initial hearing request must include your name, provider number, the fiscal year of your appeal, and the name of your intermediary. You must include a copy of the final determination you are appealing and of the audit adjustment page(s) relating to the issue(s) in dispute, if applicable.

If you are appealing a delinquent NPR, you must also identify and document the date you sent your final cost report to the intermediary and state that you did not cause the delay.

You should file with your initial hearing request, or within 30 days thereafter, an identification and statement of the issue(s) you are disputing. For each issue, you must explain the basis for the dispute which includes the controlling authorities, the amount in controversy, and the pertinent audit adjustment number. You must clearly and specifically identify your position in regard to the issues in dispute. For example, if you are appealing an aspect of the disproportionate share (DSH) adjustment factor or calculation, you should not define the issue as the DSH. The Board wants you to identify precisely the component of the DSH that is in dispute. Your description for each issue should not exceed one page in length. [May 1, 2000]

b. Initial Hearing Request for Group Appeals

The initial request for a hearing for group appeals must identify two or more providers who have received a final determination, i.e., an NPR, and a statement attesting to a reasonable belief that the amount in controversy threshold will have been met when all providers have been added to the appeal. The initial request should explain the common issue in sufficient detail to understand the complete substance of the issue. Your request must also identify the group representative (see Part I, C. 3. for more details). [May 1, 2000]

C. Board Policies and Procedures for Pursuing an Appeal

The Board has established a number of procedures, all of which arise from the Board's legislative and regulatory authorities, that you and the intermediary must follow while pursuing an appeal before the Board. [May 1, 2000]

I. BOARD'S ACKNOWLEDGMENT OF AN INITIAL HEARING REQUEST

After the Board receives your request for a hearing, it will send you, with a copy to your intermediary, its "Acknowledgment, Critical Due Dates, and Instructions" letter. This letter gives you critical data about your appeal. It assigns a case number and lists all due dates. By giving you a projected month of hearing, this letter also places your case on the Board's long-term calendar. The Board will not send you further correspondence about your appeal until it sends you and the intermediary the Notice of Board Hearing, which will inform you of a specific hearing date. [May 1, 2000]

II. COMMUNICATIONS

You must use the case number assigned to your appeal on all correspondence with the Board. You and the intermediary must copy each other on all correspondence and documentation submitted to the Board. The manner of service is commensurate with the time sensitivity of the subject matter. Except for the due dates specified in the acknowledgment letter, you each have thirty days to respond in writing to any communication submitted by the other party to the Board. The Board requires a confirmation copy by mail of any documents sent by telephone facsimile.

Neither party may communicate with the Board without giving proper notice to the other party. The Board requires that communications about an appeal before the Board must indicate that copies have been served on the parties and the Board, as appropriate. [May 1, 2000]

III. LETTER OF REPRESENTATION

You must advise the Board, and the intermediary, of the appointment of a representative with whom the Board should communicate and who will communicate on your behalf. If a representative files the initial hearing request, you must include a letter authorizing this representation with the appeal letter. The Board requires that the letter designating a representative be on your letterhead and signed by you. If you are designating a firm as your representative, you should also identify the individual within that firm with whom the Board should correspond.

You may engage more than one organization to advise you about your appeal; however, the Board will correspond with one individual only. Only that individual, i.e., representative, should file documents on your behalf with the Board. Documents filed with the Board must be on the representative's stationery.

The Board and the intermediary will send your designated representative all material to which you are entitled. The Board stresses that it is your responsibility to inform it promptly of any change in a representative or of a change in your representative's address. Failure to do so does not absolve you of your responsibility to meet the Board's due dates.

Any other party to your appeal may have a representative. The preceding criteria also apply. [May 1,2000]

IV. HOME OFFICE ISSUES

If you include home office adjustments in your appeal, the Board requires that you submit, with your initial request for a hearing or within 30 days of the Board's acknowledgment, a determination of any other providers in your organization who have the same issue(s) in dispute and of the aggregate amount in controversy. In addition, you must indicate whether any of the other issues you are disputing are suitable for a group appeal. [May 1, 2000]

V. ACCELERATED HEARING REQUESTS

You may request that your month of hearing be rescheduled to an earlier month. You and your intermediary must sign a statement that you have agreed to the issues in dispute before the Board will act upon your request. [May 1, 2000]

VI. THE BOARD'S JURISDICTION

The Board will dismiss your request for a hearing if, on its face, it does not meet the threshold requirements for Board jurisdiction. The Board will dismiss your request, for example, if you are not a provider. It will dismiss your case if you have not appealed from a final determination or if you are appealing from a determination over which the Board does not have jurisdiction, e.g., the intermediary's refusal to reopen your cost report. The Board will dismiss your appeal if your initial hearing request does not meet the jurisdictional monetary requirement. If the Board finds that your request has less than $10,000 but more than $1,000 in dispute, it will inform you and the intermediary of its determination and advise you to pursue your appeal with the intermediary. The Board will determine, too, whether a case forwarded by the intermediary because it exceeded the threshold for an intermediary hearing, does meet the jurisdictional requirements for a hearing before the Board.

The Board will also dismiss your request if you have not submitted it within the 180-day filing period. The Board may extend the filing period if you have shown good cause for a late filing. The Board will only consider a "good cause" exemption if you submit an explanation with your initial request showing that you had good cause for late filing and the Board finds your explanation acceptable. The Board decides each case based on the factual situations presented. Examples of situations that the Board may consider acceptable are (1) unusual or unavoidable circumstances that demonstrate you could not have reasonably been expected to file timely; and (2) destruction of or other damage to your records. If you request a hearing more than three years after issuance of the final determination in dispute, the Board cannot extend the time limit for filing an appeal. [May 1, 2000]

VII. ADDING OF ISSUES TO AN EXISTING APPEAL

In an individual appeal, you may add issues to the request for a hearing prior to the commencement of the hearing. You must identify the issues in writing and simultaneously furnish any supporting documentary evidence. (See Part I, B., II., a. Initial Hearing Request for Individual Appeals.) The issues must be from the final determination(s) that is(are) the subject of your hearing request. The Board does not acknowledge the addition of issues to an existing appeal. Since you are responsible for addressing all issues in a position paper before the hearing, you should assume that the added issues are part of your appeal.

A group, whether mandatory or optional, cannot add issues to its appeal. The attempt to add an issue to a group appeal is viewed as a separate and distinguishable appeal request. [May 1, 2000]

VIII. ADDING PROVIDERS TO AND CLOSING OF GROUP APPEALS

The Board believes a group should be complete, that is, all providers added to the group, and the Board furnished with complete information within one year of the initial group hearing request. In order to add providers to a group, your group representative should, in writing, identify the name of the group, the fiscal year of the appeal, and the group case number. The representative must also list the names of the providers, the provider numbers, the fiscal year ends, the dates of the final determinations, and the intermediary for each provider.

When the group is complete, the Board will ask your representative to submit a complete schedule of providers in the group and jurisdictional documentation. If there are multiple intermediaries involved in a group appeal, the Board will ask the intermediaries to select, and identify to the Board, the lead intermediary. Within 60 days after the group is completed, your representative must send the lead intermediary a copy of all jurisdictional documents (schedules with supporting documentation). The lead intermediary must then review the jurisdictional documentation and forward the documents and their comments regarding jurisdiction to the Board within 30 days of receipt.

When submitting schedules of providers, your representative should follow the format included under Attachment A - Group Schedules. [May 1, 2000]

IX. POSTPONEMENT OF PROCEEDINGS

If any party to an appeal becomes the subject of investigation for possible fraud or other criminal or civil offenses, the Board may postpone all or part of the proceedings related to your appeal.

If you, or the intermediary, want to postpone a Board deadline, you must put your request in writing to the Board. Until the Board makes a determination on your request, you must continue to comply with all due dates and Board procedures. [May 1, 2000]

X. WITHDRAWING AN APPEAL

You may withdraw your appeal or any issue in your appeal for any reason. However, you must withdraw your appeal if you and the intermediary have resolved all issues in the appeal. If you withdraw your appeal, you must submit a withdrawal request to do so. You may submit your request even after the Board holds a hearing on your appeal, in which case the Board must receive the request before it mails your decision. [May 1, 2000]

XI. REINSTATEMENT REQUESTS

The Board will consider reinstatement requests from you. These fall into two categories, both of which require you to follow specific Board procedures.

a. Reinstatement -- Settlement Agreement -- To protect your reinstatement rights should you not receive payment according to a settlement agreement, you must, when initially withdrawing your appeal, submit a written request to the Board. The request must be accompanied by a copy of the settlement agreement which is dated and signed by you and the intermediary. You must meet all Board due dates until the Board officially recognizes your withdrawal request. If you comply with these procedures but fail to receive payment according to a settlement agreement, you may, within 180 days of the date of the Board's letter granting your withdrawal request and closing your appeal, request that your appeal be reinstated. Your reinstatement request must specifically explain why you want reinstatement and the issues you want reinstated. The Board will then consider your reinstatement request. [May 1, 2000]

b. Reinstatement -- Board Dismissals -- If you are requesting reinstatement because the Board dismissed your appeal for failure to comply with its procedures, you must explain in detail the reasons you failed to comply. In general, this means the reasons you missed a position paper due date, failed to respond to a Board request for information, or failed to submit a timely withdrawal request based upon a settlement agreement. Your request for reinstatement must specifically identify the issues you want reinstated, and you must provide the document or information that you did not submit timely, causing your appeal to be dismissed. The Board will then consider your reinstatement request. [May 1, 2000]

XII. PARTIES' RESPONSIBILITIES

The Board believes that many disputes between providers and intermediaries could be resolved if the parties met early to discuss their areas of difference. In fact, the Board wants to stress that the regulations at 42 C.F.R.§405.1853(a) require the intermediary to review the materials submitted with your hearing request once it has been notified that such a request was filed. It is to join expeditiously with you to resolve issues and to agree upon the issues remaining for the Board to resolve. The Board strongly urges that the parties follow this process. Doing so may obviate the need for a costly hearing and a prolonged period between the filing of an appeal and the actual hearing.

The Board also fully expects the parties to meet all due dates. Due dates are firm. They can only be changed or eliminated by written confirmation of the Board. When you do not meet a due date, the Board will dismiss your appeal. When the intermediary does not, the Board will refer the lack of action to HCFA for contract compliance. In this type of situation, the case will proceed toward a hearing, as if all parties have met their due dates. [May 1, 2000]

D. Mediation

The Board offers the parties the opportunity to resolve their outstanding issues informally through the use of alternate dispute resolution (ADR). Either party to a pending appeal who is interested in participating in ADR, i.e., mediation, should contact, in writing, the Director, Division of Hearings and Decisions at the Board's address. Once a request is received, both parties will be contacted to determine whether the case is an appropriate candidate for mediation and whether both parties agree to ADR.

If these conditions are met, the Board staff will notify the parties of the scheduled date of the mediation, which will generally take place at the offices of the intermediary. The Board suspends all pending position paper due dates until after completion of the mediation session. However, you and the intermediary must file with the mediators a short (one to two pages) summary of your position on the issues to be mediated approximately two weeks before the mediation. You both must also exchange all relevant documentation. Both parties must designate a lead spokesperson for the mediation session. Additionally, they are required to have in attendance at the session someone with authority to settle the matters at issue.

At the session, the mediators allow you, as the moving party, to set forth your position first, after which the intermediary states its position. Following these presentations, the mediators meet privately to review the issues and, then, privately with each party to discuss areas of agreement, etc. If the parties reach a full resolution of the issues, they meet together to draft a settlement agreement. [May 1, 2000]

E. The Expedited Judicial Review Process

You, or providers in a group appeal, may bypass the hearing process and obtain Expedited Judicial Review (EJR) of any action of an intermediary that involves the validity of a governing law, regulation, or HCFA Ruling. See 42 C.F.R.§405.1842. You cannot obtain judicial review of factual or legal issues that the Board has the authority to decide or of an issue or issues over which the Board does not have jurisdiction. In the case of a group request, the Board must decide that every member meets the requirements for a hearing before the Board. The Board's jurisdictional determination is a prerequisite to an expedited review determination. Additionally, the Board does not divide an appeal, i.e., the Board will not issue separate decisions on the issues in your appeal. The Board does, however, conduct a hearing on the remaining issues in your appeal while a court simultaneously reviews others for which you have been granted EJR.

After it reviews your complete request, the Board must make an expedited review determination within 30 days. The Board may make an expedited review determination on its own motion. [May 1, 2000]

I. REQUEST FOR EXPEDITED REVIEW

Your request for an expedited review determination may be your initial request or you may request expedited review at any time after you have filed your initial hearing request. You must file your request, which includes accompanying documents, for expedited review in writing with the Board at the Board's address. You cannot use telephone facsimile transmission to submit your request to the Board. You must simultaneously send a copy of your request to your intermediary.

Your request must contain all the information required for an initial Board hearing request. (See Part I, B. Right to and Request for a Board Hearing.) You must also clearly identify the issue(s) and the controlling law, regulation(s), or HCFA Ruling(s) for which the Board is to make a determination. You must also demonstrate that there are no factual issues in dispute and explain why you believe the Board cannot decide the issue(s). [May 1, 2000]

II. BOARD ACTION ON YOUR REQUEST

If your request does not contain enough information for the Board to make a determination, the Board will request more information from you or the intermediary. If the Board does not consider your response adequate or if you fail to respond, it will determine that it has the authority to decide the issue(s) and continue with case proceedings. The 30-day period during which the Board must issue a determination begins on the date of receipt by the Board of a complete request. The "date of receipt" is the date stamped by the Board on the incoming request or the date on the certified mail return receipt.

The Board may also consider any comments submitted by your intermediary before it issues its determination. If the Board believes that these comments warrant more information from you, it will request them.

If the Board is considering making a determination on its own motion that it lacks the authority to decide a question of law, regulations, or HCFA Rulings, it will notify the parties of its intent. The parties will be allowed a reasonable time to file evidence or arguments either to support or oppose the proposed determination.

The Board also has the authority to decide when two or more issues are sufficiently related to preclude separation for purposes of an expedited review determination. [May 1, 2000]

III. EFFECT OF BOARD DETERMINATION

You may seek judicial review of the Board's determination to grant expedited review or of its failure to issue a determination within the required 30-day period. You must bring civil action within 60 days of the date on which you receive the Board's determination or, if the Board does not make a determination, within 60 days of the end of the 30-day period. The Administrator does not review the Board's expedited review determination.

If the Board determines that it lacks the authority to decide an issue, it will not grant you a hearing on the same issue. [May 1, 2000]

ATTACHMENT A - GROUP SCHEDULES

Schedule of Providers in Group

List of Providers with Jurisdiction Problems.

Schedule of Providers in Group
Group Name Page No. of
Representative Date Prepared
Case No. Issue
A B C D E F G
Provider Number Provider Name FYE Intermediary Date of Final Determ Date of Hearing Rqst No. of Days Audit Adj. No. Approx. Amount Orig. Case No. Date of Add/Transf
1
2
3
4
5
6
7
8
9
10

List of Providers with Jurisdiction Problems
Group Name Page No. of
Representative Date Prepared
Case No. Issue
"X" column(s) to identify questions of jurisdiction
Provider Number Provider Name FYE Intermediary No Final Determination No Audit Adj. (if reqired) Late Filing Other (Explain) Orig. Case No. (if any)
1
2
3
4
5
6
7
8
9
10

PROVIDER REIMBURSEMENT REVIEW BOARD

INSTRUCTIONS

PART II.

PROVIDER REIMBURSEMENT REVIEW BOARD

INSTRUCTIONS

PART II

A. Prehearing Discovery

I. Scope and Limits of Discovery

II. Methods of Discovery

a. Depositions by Oral Examination

b. Interrogatories to Parties

c. Production of Documents and Items

d. Failure to Cooperate in Discovery

e. Subpoenas

f. Affidavits

B. Position Papers

I. Preliminary Position Papers

II. Final Position Paper Due Dates

III. Extensions

IV. Acceptable Final Position Papers

a. Format Standards

b. Content Standards

c. Confidential Information

d. Jurisdiction

e. Number of Copies of Final Position Papers

A. Prehearing Discovery

The Provider Reimbursement Review Board (Board), in keeping with the tenets of due process, wants to ensure that the parties receive all available information relevant to the appeal. The Board, therefore, permits prehearing discovery upon a party's timely request. You or the intermediary may obtain discovery regarding any matter that is relevant to your case within the Board's guidelines. The Board, guided by the Federal Rules of Court Procedure, rules on all petitions for discovery, assertions of privilege, or requests for a protective order. The Board's order is final. [May 1, 2000]

I. SCOPE AND LIMITS OF DISCOVERY

The Board may limit the use of discovery if it determines the request is overly burdensome or the parties had ample opportunity earlier to obtain the information they are now seeking. The Board disfavors discovery requests that are too general or vague or so far reaching in scope that they, in fact, are unreasonable.

The Board encourages the parties to obtain relevant material early in the appeal on a voluntary basis without Board involvement. Examples of relevant material are final determinations, cost reports, desk review determinations, audit work papers, and pertinent correspondence. In some cases, you may make a discovery request to the Health Care Financing Administration (HCFA) even though HCFA is not a party to the proceedings.

Discovery requests must not be raised in a final position paper. However, if a party raises such a request simultaneous with the submission of a final position paper, it must brief it in a separate document. The Board directs the parties to conform all pleadings to the Federal Civil Judicial Procedure and Rules.

The Board stresses that if discovery becomes necessary, it closes 30 days before the hearing. No discovery request may be made later than 50 days before the hearing with responses due 20 days after the date of the request. [May 1, 2000]

II. METHODS OF DISCOVERY

You or the intermediary may obtain discovery by one or more of the following: depositions by oral examination, written interrogatories, production of documents and other items, inspection and copying of documents, and affidavits. [May 1, 2000]

a. Depositions by Oral Examination

Any party may take the testimony of another party to the appeal. If you seek to depose a nonparty, you must ask the Board to issue a subpoena. The notice of oral deposition, which must be given at a reasonable time, must state the time and place of the examination, the name and address of each deponent, and the matters to be covered by oral examination.

Unless directed otherwise by the Board, the party seeking the deposition will administer the examination and cross-examination under oath. The party records and transcribes the examination, the cross-examination, and any objections made at the time. The deposed party, within 30 days, may examine the transcript and make any changes unless it waives this right. It must initial changes, state the reason behind the change, and sign the transcript. If it fails to do so, the party who took the deposition must, when it sends the transcript to the Board, note why it is unsigned. [May 1, 2000]

b. Interrogatories to Parties

A party may serve upon any other party written interrogatories to be answered by the party. Unless there is an objection, the party answering the interrogatories responds fully in writing and under oath to each interrogatory. The party signs the answers or objections, if any, and serves a copy within 30 days unless the Board allows a shorter or longer period.

Where the answering party responds to an interrogatory with information from an examination or audit of business records or from the records themselves, the reply may identify the records. The answering party will give the other party reasonable opportunity to examine, audit, or inspect the records, and to make copies, compilations, or summaries. [May 1, 2000]

c. Production of Documents and Items

You (or any party) may serve upon another party a request for the production of documents relevant to the appeal, which are owned, controlled by, or in the custody of the party. You may request that designated documents and items be produced or that you be allowed to inspect them.

The request must describe the items or categories of documents or items in reasonable detail and, if applicable, specify a reasonable time, place, and manner of making the inspection.

The party upon whom the request is served answers in writing within 30 days. If asked to do so, the Board may allow a shorter or longer period of time. The response states, for each item or category, that inspection and related activities are permitted, as requested. The party must explain in detail its objection to any item or category.

The party producing documents for inspection produces them as they are kept in the usual course of business. [May 1, 2000]

d. Failure to Cooperate in Discovery

You (or any party) may submit a Motion to Compel Discovery to the Board if a party objected to or failed to respond to a discovery request or any part of the request. An evasive or incomplete response is treated as a failure to answer. The party against whom the Motion is filed must file its comments within 20 days after the date of service.

The Board grants or denies in whole or in part Motions to Compel. Parties ordered to comply by the Board must do so within the time frame set forth in the Board's order. If a party ordered to comply with a Motion does not do so, the Board can take several actions. It may, for example, order that matters or fact be treated as established for purposes of the claim of the party obtaining the order.

The parties must file all other motions no later than 30 days before the hearing with responses due 20 days thereafter. [May 1, 2000]

e. Subpoenas

The Board may, upon its own motion or at the request of a party, issue a subpoena for the attendance and testimony of a witness at the hearing or for the production of records or other materials relevant to the case.

The parties must file all subpoena requests as early as possible, preferably no later than 50 days before the hearing but no less than 10 days before. The requests must provide in sufficient detail the name and address of the person or the location of documents being subpoenaed to permit them to be found. The request must also state what will be established through the persons or documents being subpoenaed. The Board issues subpoenas only when the requesting party can show that what it is requesting by subpoena could not be secured by other means.

The Board issues subpoenas in its name. The program, i.e., HCFA, assumes the related costs. [May 1, 2000]

f. Affidavits

Affidavits are written statements of fact that are made voluntarily and confirmed by oath or affirmation by the person making the statements. They are taken before persons who have the authority for administering such oaths, for example, a notary public. The Board, when deciding whether to admit an affidavit as evidence, takes into consideration the lack of opportunity to cross-examine the individual making the statement. [May 1, 2000]

B. Position Papers

The Board's acknowledgment letter "Acknowledgment, Critical Due Dates, and Instructions") notifies you of the dates for submitting your draft (preliminary) position paper to the intermediary. It also tells you and the intermediary when your final position papers are due to the Board.

The Board also requires position papers in group appeals. However, the Board requires only one position paper for the entire group. [May 1, 2000]

I. PRELIMINARY POSITION PAPERS

After reviewing your preliminary position paper, the intermediary should meet with you to settle issues, if appropriate, and prepare its own preliminary position paper. The Board is not involved in the exchange of preliminary position papers, and it does not receive a copy of them. [May 1, 2000]

II. FINAL POSITION PAPER DUE DATES

The parties must exchange final position papers and file them with the Board by its due date. Even if you do not receive a preliminary position paper from the intermediary, you must still file a final position paper in accordance with the Board's schedule. The Board will dismiss your appeal if you fail to submit your position paper by the Board's deadline. If the intermediary fails to submit its final position paper to the Board by the due date, the Board will schedule the case for a hearing date and will contact HCFA regarding contract compliance. If either party wants its preliminary position paper or any other filing to serve as its final position paper, it must submit it to or notify the Board of its intent by the deadline for the final position paper. [May 1, 2000]

III. EXTENSIONS

The Board disfavors requests for extensions of time to file position papers. However, if the parties believe extraordinary circumstances warrant such a request, the request must be in writing and received by the Board in time for it to review the matter before the due date. A request for an extension should be considered denied unless the Board affirmatively grants the extension in writing before the date papers are due. [May 1, 2000]

IV. ACCEPTABLE FINAL POSITION PAPERS

The Board expects final position papers to meet certain standards regarding format and content. You and the intermediary must also certify that you have exchanged final position papers.

If your position paper does not explain the facts or make any arguments about an issue in accordance with the following guidelines, the Board may find that the position paper submitted for this issue is unacceptable. In this case, it will dismiss the issue from the appeal. If you fail to address an issue, the Board will dismiss it from your appeal.

If you are appealing a determination regarding your request for an exception to outpatient maintenance dialysis payments, you must submit your position paper and evidence according to the limitation in the regulations. [May 1, 2000]

a. Format Standards

Acceptable final position papers must identify the provider by name and number and identify the intermediary. They must describe each issue and intermediary adjustment in dispute, even if settlement is pending. The Board also expects the papers to be reproduced on 8 x 11 inch letter-sized paper; include a list of all exhibits; and have all supporting documents tabbed, indexed, and identified to correspond with the issue they support. Your documents should be marked P-1, P-2, etc. in sequence. The intermediary should mark its exhibits as I-1, I-2, etc. in sequence. [May 1, 2000]

b. Content Standards

The Board expects the position papers to state for each issue the relevant facts and present arguments setting forth the parties' positions. Specifically, the description of an issue must include a summary of the pertinent facts and circumstances and cite the relevant statutory provisions, regulations, HCFA Rulings, and other controlling authorities. You must identify the monetary amount, including the computation, for each item in dispute. The intermediary's paper must contain all documents that formed the basis for the determination(s) in dispute. The Board expects the papers to contain all documentary evidence and corroboration for the positions taken, as well as other items or statements that would assist the Board in its deliberations. Jurisdiction and other motions must not be embedded in the position papers but must be addressed in a separate document. [May 1, 2000]

c. Confidential Information

Because the record in Board proceedings may be disclosed to the public, the parties should carefully review their documents to ensure that they do not contain patient names, health insurance or social security numbers, or other information that identifies individuals.

If the parties need to include materials with patient names, numbers, or other identifying information, they must redact (untraceably remove) the names or numbers and replace them with nonidentifying sequential numbers. Both parties must certify to the Board that they have reviewed the original materials and that the redacted documents have been properly prepared. If the parties cannot certify the redacted documents, they must submit with the documents a sealed envelope containing the confidential information with a cross reference from the sequential numbers to the patient names, numbers, or other identifying information. [May 1, 2000]

d. Jurisdiction

The parties must discuss any jurisdictional issues in a document separate from their final position papers. The issues must have a basis in law, the regulations, or program policy.

The Board looks unfavorably on frivolous jurisdiction disputes, that is, those without a legal basis. For example, a statement that one party does not understand the other party's issue or position is not a matter appropriately brought before the Board as a dispute over jurisdiction. The Board fully expects the parties to resolve this type of disagreement among themselves. [May 1, 2000]

e. Number of Copies of Final Position Papers

The parties will submit one copy of their final position papers, the list of exhibits, all exhibits, and the cost report by the due date. If your appeal pertains to the end-stage renal dialysis composite rate, the Board does not require a copy of your cost report. The Notice of Board Hearing, which informs the parties of the specific hearing date, will also advise them on submitting additional copies of their position papers. The parties should not resubmit their exhibits at this time.

If the parties have one position paper that covers several appeals, they still must submit copies for each appeal, in accordance with the preceding instructions. [May 1, 2000]

PROVIDER REIMBURSEMENT REVIEW BOARD

INSTRUCTIONS

PART III.

PROVIDER REIMBURSEMENT REVIEW

BOARD

INSTRUCTIONS

PART III

A. Hearing Activities

I. Notice of Board Hearing

II. Hearing on the Record

III. Prehearing Conference

IV. Witnesses

V. Disqualification of Board Member

B. Board Hearing

I. Parties to a Board Hearing

a. Related Organizations

b. Interested Persons

c. Representation

d. Attendance at a Hearing

II. Conduct of a Board Hearing

a. Role of Board

b. Presentation of a Party's Position

c. Transcript

III. Closing a Hearing

a. Posthearing

Submissions

C. The Board's Decision

A. Hearing Activities

The Provider Reimbursement Review Board (Board) generally schedules a hearing date after it has received the parties' final position papers and resolved any outstanding jurisdictional disputes or issues raised in the position papers. [May 1, 2000]

I. NOTICE OF BOARD HEARING

The Board will send you and the other parties a "Notice of Board Hearing" at least 30 days in advance of the hearing date. The Notice includes, in addition to the specific hearing date, a list of issues that will be heard by the Board. The Board may, at its discretion, schedule cases concurrently. The Board will send no further notice to the parties before the scheduled hearing.

The Notice also contains an Acknowledgment section that the parties must sign and return to the Board, along with the extra copies of the final position papers (see Part II, B. Position Papers). You are given the opportunity to waive your right to have a quorum of Board members conduct the hearing. A quorum consists of three Board members, one of whom is a representative of providers. When multiple hearings are held on the same day, a quorum may not always be available to conduct the hearing. However, a quorum is required for making Board decisions, even though the members may not be in attendance when the hearing is conducted.

The Notice includes general instructions about the hearing and a map to the Board's office. You may also find a map to the Health Care Financing Administration (HCFA) headquarters, where the Board is located, and other travel-related information at www.hcfa.gov/events/general. [May 1, 2000]

II. HEARING ON THE RECORD

You or any party may request before the commencement of a hearing that the Board decide the case solely on the basis of written evidence and exhibits. In a hearing of this type, there are no personal appearances or oral testimony. Both parties must agree to such a hearing, and the Board must approve the request. Parties to a record hearing will also receive a "Notice of Board Hearing." It is solely within the Board's discretion to grant or deny a request for a record hearing. [May 1, 2000]

III. PREHEARING CONFERENCE

The Board may schedule a prehearing conference to clarify facts, to obtain and/or clarify stipulations as to facts and issues agreed to by the parties, to identify witnesses, to consider evidence, and to consider other procedural matters. The Chairman or a member of the Board appointed by the Chairman usually acts for the Board with respect to prehearing activities.

Any party may request, in writing, such a conference. The request should be specific, e.g., define the purported purpose of a conference. [May 1, 2000]

IV. WITNESSES

Generally not later than one month prior to the hearing date, each party must submit a list of witnesses that shows the identification of each witness, its relationship to the party, and the nature of the evidentiary testimony. The parties should exchange their lists at the same time they notify the Board.

The Board will allow testimony from expert witnesses. The parties should identify the expert witnesses separately on the list of witnesses and submit, with the list, copies of resumes and a statement narrowly defining the area and scope of expertise. Each proposed expert witness must be qualified as an expert in a particular field to the satisfaction of the Board. Failure by either party to identify expert witnesses or provide copies of resumes and statements of expertise may result in the Board refusing to consider such proposed expert's testimony. The Board also rules on objections to expert witnesses. Its decision is final.

The Board, upon its own motion or at the request of a party, may call as a witness any employee of the Department of Health and Human Services with personal knowledge of the facts of the case. The Board advises HCFA when it requests the testimony of a HCFA employee. [May 1, 2000]

V. DISQUALIFICATION OF BOARD MEMBER

If you, or any other party, objects to a Board member's participation at the hearing, you must file a written objection prior to the hearing. Your objection must be in writing and filed with this Board member. You must also send copies of your petition for disqualification to the other members of the Board.

The Board member must decide as soon as possible whether he or she, based solely on the record, can render a fair and just decision. A Board member may not adjudicate a dispute if he or she is prejudiced or partial with respect to any party or has an interest in the matter before the Board. If the Board member recuses himself or herself, the Board member will notify all parties of the recusal.

If the Board member concludes there are insufficient grounds for withdrawing and the party does not agree, it may petition the Board in writing for a declaratory ruling on the member's decision prior to the commencement of the hearing. The Board, prior to the hearing, decides, without the participation of the Board member in question, and issues a written decision on the party's petition.

A Board member may also recuse himself/herself prior to or during the conduct of the hearing. [May 1, 2000]

B. Board Hearing

A Board hearing is an adversarial proceeding. The Board requires the parties to observe courtroom etiquette at all times. The Board will provide administrative due process and an opportunity for the parties to present their cases. The Board's responsibility at the hearing includes fact finding and examination of the evidence to determine whether it supports the facts or provides a rational basis for inferences of fact. The Board will establish a proper record that allows all parties to testify, cross-examine, and submit and examine all evidence.

A Board hearing is usually completed in one day or less. [May 1, 2000]

I. PARTIES TO A BOARD HEARING

The parties to a Board hearing are generally you, the provider, the intermediary that rendered the determination being appealed, and any party the intermediary determines is a related organization to you. [May 1, 2000]

a. Related Organizations

Related organizations with party status may present facts and arguments bearing on the propriety of the determination that they are, in fact, related organizations. They have all the rights of a party to an administrative proceeding. [May 1, 2000]

b. Interested Persons

Other persons, facilities, or organizations, including HCFA, may have an interest in the outcome of a hearing. In such cases, the Board may, upon its own motion or upon the written request of such person or a party to the proceedings, designate interested person status. An interested person does not have the same rights as a party. It normally presents evidence or gives testimony through a party or directly to the Board at its request. However, the Board may grant party status to an interested person if it believes substantial justice would be served. [May 1, 2000]

c. Representation

You, or your related party or any other party, may appoint legal counsel or any other person to act as your representative at the hearing. (See also Part I, C. Board Policies and Procedures for Pursuing an Appeal.) You cannot appoint as your representative an individual disqualified or suspended from participating as a representative in other proceedings before DHHS; an individual who is prohibited by law from being a representative; or an officer or employee of the intermediary or its subcontractor who directs or makes payment determinations. The contract between the intermediary and its subcontractor audit firm may preclude the latter from assisting you in resolving disputes arising from one of its Medicare audits.

At the hearing, your representative may present evidence and allegations as to facts and law. A representative may examine and cross-examine witnesses. [May 1, 2000]

d. Attendance at a Hearing

If you fail to appear at the hearing without a good cause finding by the Board, it may dismiss your case with prejudice. If an emergency arises that prevents your appearance, you should immediately request a continuance.

Witnesses may not leave a Board hearing until it has been adjourned unless the Board has granted permission to do so.

The Board controls admission to a hearing. It may open a hearing to other persons in addition to the parties, witnesses, related organizations, and interested persons if it finds their presence necessary and proper. [May 1, 2000]

II. CONDUCT OF A BOARD HEARING

You have the right and opportunity at a hearing to prosecute your position, offer evidence, call witnesses, cross-examine witnesses, and offer rebuttal presentation. The intermediary has the right to present testimony, witnesses, and evidence for consideration by the Board. Its representative may cross-examine parties and witnesses in rebutting your position. [May 1, 2000]

a. Role of Board

The Board has exclusive authority and complete responsibility for the conduct of the hearing. The Board member presiding at the hearing begins the hearing with an Opening Statement.

The Board rules on the admissibility of evidence, the necessity of extended examination and cross-examination, objections raised by the parties, the order of testimony, and the materiality and relevance of any other matter to the proceeding. The Board rules on admissibility of evidence based upon pertinence and materiality rather than the form in which the material appears. Thus, it may accept evidence that is inadmissible under the rules of evidence applicable to court procedures. The Board's ruling on admissibility is final.

During the hearing, the Board may also question witnesses. In guiding the hearing, the Board determines the order of proof and testimony. [May 1, 2000]

b. Presentation of a Party's Position

You, and any other party, have a reasonable opportunity to present oral arguments at the hearing.

You, and any other party, may open with a statement summarizing the facts, issues in controversy, matters stipulated to, amount of program payment in dispute, and the nature of the evidence and testimony to follow.

The parties may use all or part of an admissible deposition at the hearing against any party who was present or represented at the taking of the deposition or had reasonable notice thereof. Specifically, the parties may use a deposition for any purpose permitted by federal rules, e.g., to contradict or to impeach a deponent's testimony as a witness. If you offer as evidence only part of a deposition, an opposing party may require you to introduce any other part that it believes should also be considered. You may object to receiving in evidence any deposition or part thereof that would be excluded if the witness were present and testifying. You may use interrogatories at the hearing if relevant to the issue(s) under appeal.

Witnesses at the hearing testify under oath or affirmation. The Board requires each witness to affirm the authenticity and veracity of his or her testimony under penalty of law.

If you, or any party, want to submit new evidence at the hearing and can demonstrate why you did not submit the evidence earlier, the Board, upon its own motion or at the request of a party, may accept evidence introduced after the commencement of the hearing. The party that wants to submit the new evidence must provide a complete set of all such documents to the other party as soon as possible but prior to the hearing and provide six copies for distribution at the hearing.

At the close of the hearing, the parties may summarize the facts and evidence, the contentions, supporting arguments, and proposed conclusions. [May 1, 2000]

c. Transcript

The Board has a record, verbatim transcript made of each hearing. The cost of a hearing transcript is borne by the program. The Board makes the transcript available to the parties to the hearing upon their request and at their expense. [May 1, 2000]

III. CLOSING A HEARING

The Board, following final arguments, closes the hearing and advises that it will issue a written decision based upon the hearing record. The Board may at any time, on its own motion or by motion of a party, continue a hearing to obtain additional evidence or testimony it believes material and relevant to the outcome. [May 1, 2000]

a. Posthearing Submissions

The parties may submit posthearing briefs to the Board. In preparing these briefs, the parties should include a proposed decision in the following format: (a) a statement of the issue(s); (b) a summary of the facts; (c) contentions of the parties; (d) findings and conclusions with appropriate analysis; and (e) the recommended decision. The parties submit the posthearing briefs within the Board's established time frame. The parties send six copies of their briefs to the Board. [May 1, 2000]

C. The Board's Decision

The Board bases its decision on the complete case record, including the verbatim transcript of the live hearing proceedings. The opinion of the majority of Board members deciding the case constitutes the Board's decision.

The Board issues its decision as soon as possible after the conclusion of the hearing and the time allotted for posthearing briefs. It mails the written decision to all parties at the addresses in the Board's records, the Administrator of HCFA, and relevant HCFA components. The decisions are also published and made available to interested persons. The Board issues one decision for a group appeal.

The Board decision is final and binding upon all parties to the hearing unless the Administrator of HCFA reviews and affirms, reverses, modifies, or remands the decision; it is reopened in accordance with the Provider Reimbursement Manual, Part 1 (HCFA Pub. 15-1) § 2931; fraud is involved; or you appeal to the court for relief.

Any revision made to a Board decision as a result of a reopening is final and binding upon all parties. Such revision is a separate and distinct decision subject to the administrative and judicial review provisions applicable to any other Board decision. [May 1, 2000]

Last Updated May 10, 2000