PRRB Workshop. PRRB Workshop

Transcription

1 PRRB Workshop American Health Lawyers Association Institute on Medicare and Medicaid Payment Issues March 30, 2012 Baltimore, Maryland 1 PRRB Workshop Panelists Paul Crofton, Director, Division of Hearings and Decisions, Office of Hearings, CMS Bernard M. Talbert, Senior Medicare Counsel, BCBSA Keith D. Barber, Esq., Hall, Render, Killian, Heath & Lyman, P.C. William H. Stiles, Esq., Verrill Dana, LLP 2 1

2 PRRB Workshop Appeal Facts/Numbers The Appeals Process How it has changed and stayed the same Case Management Strategies Hearings Your Day in Court 3 Appeal Facts What the Numbers Look Like FY 2002 all time high of 13,907 cases Beginning of FY ,076 cases Inventory as of 9/30/11 6,394 cases New appeals filed in FY cases Appeals closed in FY cases 4 2

3 Appeal Facts Appeals History FY Balance New Appeals Filed ,790 2, ,836 2, ,100 2, ,561 1, , Appeal Facts Types of Hearings Held in 2011 Live-in person hearings 23 Telephone Hearings 3 Record hearings approved 6 Accelerated Hearing Requests <

4 Appeal Facts What This Means? Less than 30% of appeals filed in FY 2011 compared to FY07-09 No hospital NPRs w/ DSH for 4-6 years Flood of new appeals expected in FY12 Reps will appeal EVERYTHING New 2008 Reg. regarding Protested Amounts 7 Appeal Facts When Will CMS Release SSI Data? By mid-2012????? Instructions to contractors Jurisdiction determinations Expect deluge of appeals late in calendar

5 Appeal Facts Open Cases at 12/6/11 Individual Cases 2,817 Group Cases 3,469 Total Open Cases 6,286 9 Appeal Facts Appeals by FI/MAC Group Indiv. Total % NGS ,541 24% FCSO-CA ,535 24% WPS % Highmark % Trailblazer % Noridian % 10 5

6 Appeal Facts Appeals by FI/MAC (continued) Group Indiv. Total % FCSO-FL % CGS Admin % CGBA % CSA % Palmetto % Pinnacle % Unassigned Groups % 11 Appeal Facts Appeals by State as Percent of Total Appeals California 26% New York 8% Texas 7% Florida 5% All other states <5% 12 6

7 Appeal Facts Old Cases by FI/MAC % NGS % FCSO-CA % WPS % Trailblazer % Highmark % CGS Admin % All others % 13 Appeal Facts Impact on Appeal Defense Changes in MAC assignments for hospitals in Michigan, Indiana, Ohio, Kentucky, Texas, New Mexico and Colorado Constant shifting of assignments Loss of personal and Institutional continuity from Provider s perspective Loss of personal and Institutional continuity from Intermediary/MAC Representative s perspective 14 7

8 Appeal Facts Still consults with and represents Intermediary/MAC s that have some affiliation with a parent Blue Cross Blue Shield Plan Have working arrangements with WPIC for some but not all appeals Two sites: Baltimore/Washington (covers New England down to Maryland). Chicago (rest of the Country) 15 Appeal Facts Hearings in 2012 Will schedule 120+ cases per month Old, new & groups Abeyance cases (Baystate +) AdminiStar Pilot appeals Identify cases for scheduling with oldest FYs, even though newer case numbers Accelerated hearings SSI % + other issues 16 8

9 Appeal Facts Scheduled Cases Snapshot (Old to New) April 2008 April 2009 May 2010 April 2011 April 2012 Docketed Cases Providers FYE 5+ years old Four or more issues Group Cases? DSH Issues? Don t know issues n/a n/a Appeal Facts What is the Board Doing re: 1498? 1498 stripped Board of jurisdiction on 3 issues Issued EJR decisions saying it lacks authority to make a determination on validity of 1498 & deems it appropriate for the courts Cases will remain open pending Federal Court ruling on Board jurisdiction Remanding issues under alternative procedure when asked 18 9

10 Appeal Facts 1498 Board Remands Individual Appeals - Standard Individual Appeals - Alternative Group Appeal - Standard (closes case) Group Appeal - Alternative (closes case) 19 Appeal Facts Number of 1498 Remand Request Processed in FY 11 Alternative Standard SSI Labor/Delivery Dual Eligible Total processed

11 Appeal Facts Earlier Prediction PPS does not seem to be making much business for lawyers. This is in marked contrast to Medicare cost reimbursement which preceded PPS. If cost-based reimbursement was a gold mine for hospitals, it also made lawyers rich. Cost-based reimbursement continually raised questions of the sort that lawyers (and accountants) love to argue about. [Advance refunding, direct apportionment or malpractice, is a labor room day a patient day for computing an inpatient routine cost per diem.] 21 Appeal Facts Earlier Prediction (continued) Litigation about such cost-finding and apportionment questions, and about the timing and procedures for review of cost-reimbursement issues, the appropriateness of HHS rulemaking on costreimbursement issues, and interest rates on eventual judgments against HHS, continue to occupy the courts with respect to facilities that are still paid on a costrelated basis

12 Appeal Facts Earlier Prediction (continued) In contrast to cost-reimbursement, PPS raises remarkably few justiciable issues. Issues raised by PPS are either political questions, such as the standardized amount update level for any particular year, or technical questions, such as how a particular DRG should be weighted or which DRG should be assigned by a hospital to a particular admission. Congress has made it clear that it does not want the courts getting involved in these determinations. Health Law, Cases, Materials and Problems, Furrow, Greaney, Johnson, Jost and Schwartz; American Casebook Series, West Group Fourth Edition 2001 (First Edition 1987) 23 Appeal Facts Earlier Prediction (continued) Personal concern that job would end by 1985 (and it is 2012) Most EJR and Jurisdictional Decisions have IPPS implications Re: Decisions Prospective payment systems cover now other classes of providers BCBS participated in 39 Decisions, at least 21 had a PPS implication 24 12

13 The Appeals Process The Players Providers / Provider s Representative MAC / BCBSA Board Advisor Board Members 25 The Appeals Process Individual Group Optional Group CIRP Filing Appeals 26 13

14 The Appeals Process Jurisdiction Dissatisfied with a final determination $10,000 amount in controversy Deadline: 180 days after notice of final determination 27 The Appeals Process Jurisdiction Dissatisfaction Audit adjustment Protested amounts Mistakenly self-disallowed costs? 28 14

15 The Appeals Process Jurisdiction Recent Developments 29 The Appeals Process Which Track? The Regular Track Joint Scheduling Orders EJR? Mediation 30 15

16 The Appeals Process Joint Scheduling Order Must be filed by preliminary position paper due date Designed to address all pre-hearing and hearing dates (except final position paper) JSO deadlines become the Board s deadlines 31 The Appeals Process Joint Scheduling Order Resolved issues Conditionally resolved issues Unresolved issues Hearing date (Model Form F) 32 16

17 The Appeals Process EJR No material facts in dispute Board has jurisdiction Board lacks authority to decide a question of law, regulation, or CMS policy Do you want EJR? 33 The Appeals Process EJR One chance to complete the administrative record Present your witnesses Make CMS pay for lack of discovery and witnesses 34 17

18 In 2011, The Appeals Process 8 locations 7 MACs participated 11 mediation sessions Mediation 35 The Appeals Process Why is the PRRB Using Mediation 3 years + from appeal to hearing & up to 1 year for a decision to be issued 90% of cases settle before a hearing & 85% of those settle DAYS before scheduled hearing 36 18

19 The Appeals Process Who Has Mediated in 2011? Palmetto SC (twice) 15 NGS NY, IN, ME, MI, WI 36 FCSO CA (twice) 16 FCSO FL 5 Highmark PA 16 Noridian AZ & WA The Appeals Process What Kinds of Cases are Ripe for Mediation Issues involving factual/documentation disputes DSH + other issues Critical Access Hospitals IME/GME Organ Acquisition Bad debts Any issue not legal in nature 38 19

20 The Appeals Process Advantages of Mediation No preliminary Position Papers No final Position Papers No PJSOs FI/MAC does not need BCBSA (Chicago) approval for mediation resolution (unlike nonmediated administration resolution) Closes cases sooner rather than later 39 The Appeals Process Final Thoughts on Mediation Over 2200 cases mediated in 13 years If a case had mixture of mediatable & nonmediatable issues, it s still ok Can help FI in managing workload Can be part of Board s scheduling concept Cases with 1498 issues can still be mediated If unsuccessful, go to front of the line for hearing Can request when appeal is filed 40 20

21 The Appeals Process Discovery THEN FI Oriented Easy and not contested No Privileges Complete admin record in court NOW Only relevant against CMS Contested and barred by regulation FOIA and privileges Incomplete admin record in court 41 The Appeals Process Preliminary Position Papers and Exhibits Old Practice: Broad arguments to preserve issues New Practice: Fully developed arguments and documentation Limits on adding new arguments and documentation (some exceptions apply) 42 21

22 The Appeals Process Final Position Papers and Exhibits Old Practice: Broad arguments to preserve issues Old Practice: File supplemental position papers before hearing New Practice: Supplemental position papers frowned upon 43 Case Management Strategies New Rules Promote Front Loading the Appeals Workload Embrace it Get your clients to embrace it Set hearing strategy early Build your case early Collect your documents early 44 22

23 Case Management Strategies PSJOs Use Them When Appropriate Front Loading allows early evaluation Provider can set hearing timeframe accordingly Set ample time for discovery, research, briefing, hearing preparation Pick your hearing date 45 Case Management Strategies Stipulations Use Them When Appropriate BCBSA Attorneys are reasonable Don t waste valuable hearing time presenting factual testimony that is not in dispute 46 23

24 Case Management Strategies Thoughtfully Prepare Your Exhibits Use of tabs, indexes, bates stamps, and (appropriate) binding pays off, both during preparation and at the hearing If bound, use separate high use exhibits Include copies of important legal references Remember to redact confidential data 47 Case Management Strategies Understand That Auditors are Different Than Lawyers Auditors like rules (lawyers question rules) Auditors see black and white (lawyers see a lot of gray) This is what makes them good auditors You don t understand them. They don t understand you. It is okay

25 Case Management Strategies Understand There is Inherent Conflict Between Auditor and Provider s Counsel It is your job to get your client as much reimbursement as the law allows It is their job to only pay your client what they believe has been properly documented You will often disagree It is okay to disagree 49 Case Management Strategies Understand You Will Have to Deal With This Person Again This includes auditor, BCBSA counsel, board advisors, and board members Be clear about your intentions. No tricks. Take responsibility do what you say you are going to do Don t threaten something if you are not prepared to follow through 50 25

26 Case Management Strategies (Can you help us help you) Reality is that very few scheduled appeals require a hearing. Most involve audit type work or waiting for another decision Trick is to identify those that might go to hearing or need extra help in resolving Sources: FI/ MAC and BCBSA professional judgment, PRRB contact, opposing Representatives push We don t discourage earlier contacts 51 Hearings Your Day in Court Hearing Preparation Final Position Paper Stipulations Hearing Exhibits Witness Preparation 52 26

27 Hearings Your Day in Court Hearing What Kind of Hearing? Live Record-requires Board approval Telephonic-requires Board approval 53 Hearings Your Day in Court Be Ready for the Hearing Clear, concise opening statement Have your witnesses prepared Have everything you need for each witness Announce your intentions with each witness ( we will be referring to exhibits P-,, and during this testimony) Let everyone get on the same page first 54 27

28 Hearings Your Day in Court Post-Hearing Briefs 45 days Address Board questions Incorporate hearing evidence Exhibits Hearing transcript Last opportunity to influence Board members 55 QUESTIONS? 56 28