In this episode, we are joined by Greg Fliszar from Cozen O’Connor to discuss key takeaways from the recent PRRB updates and what they mean for hospitals.
Highlights of this episode include:
- Specifics around the new rules and what they mean for filing PRRB appeals
- Details on new reinstatement options for providers
- What new rules require for the transfer of issues in CHIRP appeals
- Key takeaways from the updates for hospitals and hospital systems
- And more…
Mike Passanante: Hi, this is Mike Passanante. And welcome back to the Hospital Finance Podcast.
I’m joined today by Greg Fliszar who is a member of the law firm, Cozen O’Connor, where he focuses on health law and handles a variety of health law litigation and regulatory and compliance matters for a number of different types of healthcare providers.
Greg is here today to explain recent PRRB updates and what they mean for hospitals.
Greg, welcome to the show!
Greg Fliszar: Yeah, thank you Mike. I really appreciate it.
Mike Passanante: So Greg, why don’t you start off by telling us when the new rules took effect?
Greg Fliszar: Yeah, the new rules were actually published on August 29th 2018. And they took effect immediately.
There’s a lot of providers that took a little bit of umbrage at that. They were hoping that the PRRB might send out some proposed rules where they could comment on. But CMS just went ahead and published the rules and they were effective immediately, which means that any new cases that were filed after August 29th, 2018 certainly had to follow the new rules, but also any pending cases.
So, if you had a case that you filed let’s say in June of 2018, once the new rules took effect to those pending cases, you have to follow those rules as well.
So, it’s for both new and pending cases. And it started on August 29th of 2018.
Mike Passanante: Okay. So, let’s dive in to some specifics around these new rules and some other matters surrounding it.
So first, why don’t you tell us what is the Office of Hearing Case and Document Management System? And what does that mean for filling PRRB appeals?
Greg Fliszar: Right! I think this is one of the most important differences in the rules, the PRRB finally moving into this sort of modern age of electronic filing.
Essentially, what the Office of Hearings and Case Document Management System is, it’s a web-based portal for electronic filing, sort of as what we have with the federal court system or even most of the local courts now have electronic filings. So instead of running to the office, or in this case, trying to FedEx your appeal request on time to get to the PRRB in Baltimore, now you can do it electronically.
So, I think that’s a real step in a positive direction. They’re probably trying to streamline things and make things easier for folks.
Essentially, the way it’s going to work is parties can enter and maintain their initial appeal—they can enter their initial appeal through the portal, they can maintain correspondents with the PRRB through that whether it’s motions, whether it’s requests. Any correspondents at all, that’s going to be through the portal with the PRRB.
Access to specific cases though is going to be limited to the parties of each case and their representative. So it’s not going to be a wide open system where, for example, if I know there is an interesting PRRB case in California that I want to follow, I can’t get on to the system and follow that. It’s really just for the parties themselves who can get on to it.
Right now, it’s still in the roll-out phase, so it’s optional. But it’s strongly encouraged. The rule strongly encourages you to use this. They want people to get on to it. They want people to get used to it. I think it’s going to go mandatory at some point in time. We’re not there yet. I’m sure there’s still a few glitches in the system here and there. But again, they strongly recommend it.
The good part too is all filings will receive an automatic confirmation of correspondence to document the filing. So you have that documentation that you filed it, and hopefully, that you filed it on time.
The board will also use the portal to communicate with the parties via email—for example, giving out the acknowledgement letter that “we acknowledge we have your appeal,” the notice of hearing which sets the basic deadlines in the case. Those are all going to come through the portal.
One good thing about this is also—well, I think that, sometimes, it’s a double-edged sword. Previously, if you had to get something into the PRRB, you had 180 days from your NPR to get your appeal in. And if you’re like most of us, you wait until the very last minute, then you’re trying to FedEx it out and make sure it gets to the PRRB. And it had to get to the PRR in a paper format by 4:00 Eastern time.
Now, you have until 11:59 Eastern time, 11:59 p.m., to get it there electronically. So that gives you some extra time if you need it. Although, again, the double-edged sword is that you may be there until 10 or 11 o’clock if you’re working on something that’s at the last minute.
But it gives you that flexibility. You don’t have to FedEx it out and worry about if it’s going to get there on time or not. You can do it electronically. You’re going to get an immediate response back.
Mike Passanante: Sounds like an improvement!
Greg Fliszar: Yeah, it does sound like a good improvement.
One thing though, I think they’re going to be ready to handle everything except for—it looks like the system is not ready to handle if you’re doing a group appeal, the schedule of providers and the jurisdiction documentation. If you’ve done group appeals with a fairly large number of groups, that can be a pretty large document, and it doesn’t seem like their web portal system is ready to take that on yet.
So, that’s the one thing that has to be done no matter what by paper even if you’re doing this.
I haven’t used it myself. There are some others who have written about it that said that it takes a little while to register on to the system. So I think if you’re planning ahead, and you want to go ahead and do some electronic filing, I think the first step is to get yourself registered through the PRRB. That’s in the rules about how to do that. And I think that’s probably your first step.
I think if you try and wait until the last minute and get registered, and then file your PRRB appeal, you might be pushing your luck a little bit. So, I would suggest that folks, you know, if you’re interested in the filing, try and start sooner rather than later getting yourself registered and set up for it.
Mike Passanante: Good advice! Greg, what are the new requirements for position papers?
Greg Fliszar: This is another big difference compared to the old rules.
Under the old rules, you had your preliminary position paper. And that only went to the MAC. The MAC would send out a preliminary position paper to the provider, the provider would send theirs to the MAC, and each side would send the PRRB just the first page of the paper and the exhibit list. That was it. The PRRB really didn’t get involved much with the preliminary position papers.
And I think, if I recall, the purpose of that was just to get the parties talking, that maybe they could resolve the issue once they saw what each other’s arguments and concerns were.
But a lot of times, I think a lot of folks would do sort of a bare bones preliminary position paper, and then really beef it up in the final paper, knowing that that’s what the board was going to get.
Well, that’s drastically changed now.
Right now, under the new rules, the provider and the MAC not only exchange the preliminary papers between themselves, but they have to send it to the board. And that’s going to be the prime position paper that the board looks at.
In fact, you have to file the full position paper and all the exhibits with the PRRB. And the PRRB in the new rule say that “any new arguments and documents that are not included in the preliminary position paper may be excluded in the hearing unless the parties could show good cause otherwise.”
So, you’ve really got to get your arguments and exhibits fully developed. And you’ve got to put them in the preliminary position paper. Otherwise, you’re going to lose those arguments. They may not accept them at the hearing.
Now, this is all for the new appeals. This is for appeals that are filed after August 29th. And it makes the final position paper for those new appeals—the final position paper is now optional. The parties don’t have to do it. You’re welcome to do it if you want to, but it can’t really bring up new issues. It’s really supposed to refine the issues.
Say, for example, you had three issues, and maybe one was resolved, you can use that as a vehicle to let the PRRB know, or if there’s been any sort of development in the law since then. Maybe there was a case law, a case in the district court that came out that affects your arguments one way or another, or there was a PRRB decision that affects your arguments one way or another that came out since the initial paper, you can add that into the final paper.
Again, it’s just really supposed to refine issues and bring up new law. And it’s optional—which is very different from before you had an initial preliminary paper that the PRRB never saw, and then the final paper was really what they relied on. Now, the PRRB is really relying on that initial paper.
So, you’ve really got to get your ducks in a row. You’ve got to have all your exhibits, you’ve got to have all your arguments laid out. Otherwise, you may waive them at hearing.
Now, for appeals that are pending that were filed before August 29th, you still have the final position paper requirement. This change is really only for those that are filed after August 29th.
Again, I think this is a way of streamlining. This is I think that the electronic transfer, electronic portal, is going to help streamline the filing of these papers. I think with the position papers, I think this is going to help streamline the process as well and get you moving towards a hearing quicker.
And as we all know, there’s a little bit of a backlog right now for PRRBs. So I think this is one way to reduce some of the requirements and try and have a little more speed in the process.
Mike Passanante: Greg, what did the new rules require for the transfer of issues from an individual appeal to a common issue related party or a CIRP appeal?
Greg Fliszar: Right, yeah. And we commonly refer to them as the “CHIRPs”, the “CHIRP appeals.”
For providers who are under a common interest or control, if you’re going to transfer an issue from an individual appeal to a group appeal—which happens a lot of times—now you really have to make sure that you get that before you file this preliminary position paper.
As I’ve said, the preliminary paper is really the paper, and the board wants to make sure that all the transfers of the group is fully formed before either you file your preliminary position paper or a filing of a joint scheduling order.
So, you’ve really got to get those in pretty quickly. You just can’t wait until after the fact and just start adding other members to the group who had filed individual appeals.
Mike Passanante: And tell me about the new reinstatement option that allows providers to preserve their appeal while trying to work out a resolution with the MAC.
Greg Fliszar: Yeah, this is a new one. This is rule 47.2.3 I believe it is. There’s a lot of different rules and a lot of machinations. But for this one, I think it’s interesting.
I think this is if you’re in a situation where you’re sort of up against your 180-day limit, you’re up against the deadline to file your appeal, but you think you can work this out with the MAC.
But in order to protect your appeal rights, what you can do under the new rule is you can file your appeal timely, and then you withdraw the appeal.
As you withdraw the appeal, then you would send a letter to the MAC asking for a reopening and see if they can discuss it and resolve the issues.
The MAC can either deny the reopening, can either agree with you. They can either deny the reopening or they can actually accept the reopening. And once it accepts the reopening, the MAC can either decide, “Okay, we understand. We’re with you on this one,” and then you resolve the matter and it goes away. Or the MAC could still deny the reimbursement.
So, in those cases where the MAC either refuses to reopen the case, or if they deny your reimbursement continually, you can now go back and file a motion for reinstatement to have your case brought back. And it will be brought back. You just have to include it in your motion for reinstatement a copy of the reopening request and the correspondents from the MAC that essentially denied the reopening or denied your release request.
So, it’s a chance to see if you can work it out with MAC while still preserving your appeal rights. I think that’s something that could be useful for a lot of providers who think they have an issue especially if they have good relationships with their MAC, their contractor. They can maybe preserve the appeal. File it, withdraw it, see if they can work it out with the MAC. If that doesn’t work, they can reinstate the appeal, and it starts back up again.
Mike Passanante: Great! What about post-hearing briefs?
Greg Fliszar: Right! These are now going to be—whereas they were pretty much standard fare before, now post-hearing briefs will only be accepted if requested by the board at the close of the hearing.
And again, I think this is also to try and streamline the process instead of waiting to get the briefs, then review the briefs and everything else. I think they’re trying to put more emphasis on the hearing.
And obviously, it puts more emphasis not only on the hearing but on your closing arguments. So you can’t just rely on your post-hearing brief to be the last word. The last word most likely is going to be your closing statement. So I think that’s going to be something that you’ve really got to put a lot of effort into and make sure that you got all your points across and that the board really understands what your position is.
Mike Passanante: Before we finish up, Greg, do you have any other quick takeaways or practice tips for our audience?
Greg Fliszar: Sure, yeah. And again, we’re just going over the highlight of the rules. I mean it’s a 90-page document. So I think, first off, one of the takeaways and practice points is just, if you’re about to file a case, or if you’ve already filed one that’s pending, and you haven’t looked at the new rules yet, I really suggest that you do.
There are some nuances throughout. We just highlighted some of the real big differences, some of the big changes in the rules. But there are nuances throughout that are little tweaks here and there.
I think it’s very important because, as we all know, a lot of times, you’ve got a lot of money at stake in these appeals as a hospital or a hospital system. And you don’t want to be tripped up and lose your appeal rights by not following some of the technical rules that are in here.
The first takeaway is make sure you take a good read through the rules.
And not only that, at the end of the rules, they have the appendices that have the different model forms. For example, model form A is the form you file when you’re submitting an individual appeal, modern form B is the form you file when you’re doing a group appeal. Those have all changed. There are new versions of those. And that’s all included in the rules in the back.
So, you have to make sure that you’re using the right form, that you’re not using a form from the previous rules. I think that’s going to be very important. It’ll be a shame to have an appeal kicked out for filing the wrong form.
So, again, read through the rules. Make sure you’re familiar with some of the new changes. Look at the back of the appendices. Make sure you’re using the right form and the revised form.
Two other real quick issues. I think they clarify in here that some issues like disproportionate share hospital payments, graduate medical education, they may have multiple components to them. They may have multiple issues with them.
“To comply with the regulatory requirements, to specifically identify the items in dispute, each contested component must be appealed as a separate issue and described as narrowly as possible.”
So, essentially, what they’re saying is say, for example, you have a disproportionate share hospital or a DSH appeal, that can be many things. So it’s not going to be enough to pass muster on your appeal request just to say that “we reject the disproportionate share payment.” You have to actually talk about what part of the disproportionate share payment you’re talking about and what are the reasons. Is it the SSIP’s? Are you talking about a Section 1115 Waiver Day appeal? Are you talking about trying to include state general assistance stays in the Medicare DSH calculation?
You just have to be specific and lay it out. You just can’t say, “We challenged the Medicare DSH payment” or “We challenge the GME payment.” You’ve got to really focus on what part of the issue you’re talking about.
And I think another thing that’s interesting—and its part I think of the modernization of the PRRB—is that they actually have a rule over there really encouraging the use of visual aids at that hearing. They’re talking about using things such as powerpoints and diagrams and large print copies that can be blown up and shown to the other side.
So, it looks again, just like what they’re doing with the electronic filing, they’re trying to look more towards electronic court room as well as you see in a lot of federal courts and a lot of state courts where folks bring in powerpoints and they bring in copies of contracts that they could put up on the screen or regulations and so forth. That’s really what they’re looking for. I think that’s going to be helpful in the hearing process.
If you’re going to do that, you have to make sure that you include whatever powerpoints or diagrams you’re going to use as exhibits ahead of time. And you also have to share those with the other side.
So, I think that’s going to be important when you get to the hearing, to make sure that you’ve got some good visual aids as well. It looks like they don’t just want to sit there and listen to it. They want to be shown what the reg is. They want to be shown what your position is.
So, I think powerpoints, blown-up pictures of the regulation issue that you’re dealing with, those are all going to be helpful.
Mike Passanante: Great insights today, Greg. If someone in our audience would like to learn more about what you do, or get into contact with you, what’s the best way for them to do that?
Greg Fliszar: Sure! You can always give me a call. It’s 215-665-4737 or my email address—I have a funny last name. So it’s firstname.lastname@example.org. Either way, feel free to reach to me. I’d be more than happy to talk about it with you.
Mike Passanante: Greg, thank you so much again for stopping by the Hospital Finance Podcast today.
Greg Fliszar: Well, thank you. I enjoyed it Michael. And again, I appreciate the opportunity to work with Besler on your podcast—which are always very helpful.
Mike Passanante: Thanks Greg.