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March 26, 2020

Provider Reimbursement Review Board Alert 19 Amends Procedures in Light of Coronavirus Pandemic

This Alert is brought to you by AHLA’s Regulation, Accreditation, and Payment Practice Group.
  • March 26, 2020
  • Kenneth R. Marcus , Honigman LLP

In response to the COVID-19 pandemic on March 25, 2020 the Provider Reimbursement Review Board (PRRB) issued Alert 19 (the numbering is entirely coincidental) which suspends what the PRRB calls “Board Set Deadlines” and provides other special instructions regarding Board procedures during the pandemic.[1] In issuing Alert 19 “[t]he Board recognizes that the immediate focus and priorities of Providers should be on caring for their patients. Likewise, the Board wants to ensure the health and safety of all relevant parties before the Board, while continuing to operate in the most efficient manner possible.” Recognizing the fluidity of the crisis, “the Board plans to continuously reassess its response and will issue additional updates through Board Alerts, as necessary.” Providers and their representatives are well advised to review Alert 19 and, as always, to remain vigilant regarding filing deadlines.

“Board Set Deadlines” Suspended

The Board explains that “Board Set Deadlines” are filings “including, but not limited to, deadlines for filing preliminary or final position papers, Schedules of Providers, witness lists, and case status reports.” Board Set Deadlines arising on or after March 13, 2020 are suspended. Specifically, the Board states as follows:

The Board encourages Providers and their representatives to continue to make these filings electronically through OH CDMS, as appropriate and in keeping with public health precautions. However, as the use of OH CDMS is not yet mandatory, the Board is suspending “Board-Set Deadlines” from Friday, March 13, 2020 forward until the Board is back to normal operations (see 42 C.F.R. § 405.1801(d)). Once the Board is in position to resume its normal operations, the Board will reassess the public health situation and post an alert for further guidance on the deadlines for these suspended filings.

A member of the Board’s management staff has clarified that “‘Board-Set Deadlines’ from Friday, March 13, 2020 forward” refers to deadlines arising on or after that date, not to Board letters issuing deadlines on or after that date.

Alert 19 is careful to explain that deadlines for filing appeals are established by statute or regulation and therefore are not suspended, although the provider can request an extension for “good cause” as provided by law:

“Board-Set Deadlines” does not include the deadlines for filing of appeals or adding issues to appeals or any other deadlines established by statute or CMS regulations. Pursuant to 42 C.F.R. § 405.1836, a Provider may submit a written request to the Board to extend the time for filing an appeal period for “good cause” where the Provider can establish that it could not reasonably have been expected to submit a hearing request within 180 days due to extraordinary circumstances beyond its control. (Emphasis in original.)

The exception for a “good cause” deadline extension is codified at 42 C.F.R. § 405.1836. “Good cause” is defined as “extraordinary circumstances beyond its control (such as a natural or other catastrophe, fire, or strike), and the provider's written request for an extension is received by the Board within a reasonable time (as determined by the Board under the circumstances) after the expiration of the applicable 180-day limit.” 42 C.F.R. § 405.1836(b). As evidenced by reported decisions, historically the Board has been highly selective in determining whether this standard has been satisfied. Best practice is to meet the filing deadline and to not rely on the chance that the Board may grant a good cause extension, although one would hope that during this unprecedented national crisis the Board will more liberally construe “good cause” than it has historically. Note that the regulation provides that the Board’s decision is final and not subject to appeal. 42 C.F.R. § 405.1836(e)(2). One reported decision, however, held that this provision of the regulation was invalid. See Oakland Phys. Med. Ctr. v. Azar, 330 F. Supp. 3d 391 (D.D.C. 2018)).

Special Filing Instructions

As are many others, the Board and its staff are working remotely. “[T]he Provider Reimbursement Review Board (“PRRB” or “Board”) and Centers for Medicare & Medicaid Services (“CMS”) support staff have temporarily adjusted their operations and are maximizing telework for the near future.” Although the use of the Board’s electronic filing system, OH CDMS, is not mandatory, the PRRB encourages Providers to utilize that system, particularly during this pandemic. If they have not done so already, Providers and their representatives are well advised to register for and to utilize the OH CDMS.[2] However, out of necessity, certain filings continue to be hard copy, notably the Schedule of Providers for group appeals. The Board instructs as follows regarding hard copy filings: “[I]f you make hard copy filings with the Board during the pendency of the Board’s temporary change in operations, Board action on that filing will be delayed until after normal operations resume.” (Emphasis in original.) The Alert also provides special mailing instructions regarding hard copy filings which providers and their representatives should review carefully.

Board Processing of Expedited Judicial Review Requests

Providers challenging the Medicare Act, regulations or CMS rulings may request expedited judicial review (EJR) in order to proceed directly to federal court. 42 U.S.C. § 1395oo(f)(1). The Board has 30 days to issue its decision on an EJR request. A prerequisite for receiving an EJR order is the Board’s determination that procedural jurisdictional requirements are satisfied. For group appeals, it is necessary for the Board to review the sometimes voluminous Schedule of Providers. As noted, the Schedule of Providers is filed in hard copy form, not via the OH CDMS. Accordingly, the Board has stated that there will be a delay in its processing of EJR requests: “[D]uring the pendency of the Board’s temporary change in operations, the Board will not be able to receive and process EJR-related hard copy filings such as Schedules of Providers in the usual manner.” The Board is invoking its right to stop the 30-day clock if it is unable to obtain the necessary documentation with which to process an EJR request. “Accordingly, the Board will follow CMS regulations at 42 C.F.R. § 405.1801(d)(2) when calculating the Board’s 30-day time period by excluding all days where the Board is not able to conduct its business in the usual manner.” Based on these statements, providers who filed EJR requests within the past 30 days should anticipate a delay in the PRRB’s decision.

Postponement of Hearings

The Alert states as follows regarding hearings currently scheduled for April or May:

The Board will postpone and reschedule any in-person or telephonic hearing currently scheduled in April and May if the parties have been unable to reach administrative resolution. The Board Advisor handling your case will be in contact with the parties to obtain a status update and to reschedule, as appropriate. If the parties would like to proceed with a hearing currently scheduled in April or May, please contact your Board Advisor as soon as possible to discuss options. In light of the developing circumstances, the Board is exploring its options for conducting hearings moving forward.

The Board has always granted parties’ request to conduct hearings via conference telephone, which typically do not involve extensive review of documentation or presentation of multiple witnesses. Presumably hearings that are suitable for telephonic communications can continue to be conducted if and as requested by the parties.

Kenneth R. Marcus is a Partner at Honigman LLP. This article is not intended to furnish legal advice. Readers wishing to discuss this topic should feel free to contact the author at [email protected] or 313 465 7470.