CMS Fights Growing Number of Appeals

Providers are encouraged to file protective appeals.

“In section XI of the preamble of the proposed rule, we discussed the growing number of Provider Reimbursement Review Board (PRRB) appeals made by providers and the action initiatives that are being implemented with the goal to decrease the number of appeals submitted; decrease the number of appeals in inventory; reduce the time to resolution; and increase customer satisfaction.”

This is a direct quote from the 2020 Medicare Final Rule. I do wonder who the “customers” are that the Centers for Medicare & Medicaid Services (CMS) is trying to make happy.

The PRRB gives Medicare providers an independent forum for resolving Medicare Part A reimbursement disputes associated with cost reporting.

To file a PRRB appeal, Part A providers must:

• Be dissatisfied with a final determination by CMS or a Medicare Administrative Contractor (MAC);
• Demonstrate that the amount in controversy is $10,000 or more (or $50,000 for a group); and
• File a request for a hearing within 180 days after receiving the final determination.

Most of the final determinations appealed to the PRRB relate to the Notice of Program Reimbursement (NPR) or revised NPR for the Medicare cost report but may include other final determinations, such as:

• Exception decisions
• Quality reporting program payment reduction decisions
• Certain provider reimbursement issues addressed through the Federal Register

In 2017, CMS streamlined some PRRB processes. In 2019, they created a portal for the submission of documents. Unfortunately, they failed to fix the underlying complexities of “briefing” and arguing appeals. Here is the biggest problem. Many providers file “protective appeals” as placeholders so they can benefit from future court rulings. I tell my clients to file protective appeals.

How do protective appeals work? Let’s say there is a court case that makes its way to the District of Columbia Circuit or U.S. Supreme Court. Say the case applies to cost reports from fiscal years 2011 through 2017. Only the plaintiff and providers with open appeals can demand relief. CMS may relent and grant those cost reporting periods subject to reopening (three years for the Notice of Program Reimbursement) also receive relief. That will still not provide relief for all the periods covered. 

So, what would I recommend as an answer, if I could recommend policy? I would recommend a regulatory change that required CMS to reopen and amend all cost reports for any provider that would have benefited, had they filed an appeal of all federal cases. Without that, providers should continue filing protective appeals.