Medicare and Medicaid DSH, Medicare Cost Reporting Procedures & The Appeals Process West TX Seminar February 21, 2014 TAHFA & HFMA Lone Star Chapter Good To Great Refresh Renewal Re-Energize

Kristin L. DeGroat, Esq. & Corinna Goron, President

OVERVIEW •

Electronic Health Record

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Medicaid Expansion

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New Medicaid DSH Methodology

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Final Medicare DSH Rule for FFY 2014

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Issuance of Notices of Program Reimbursement (NPRs)

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Amending Cost Reports

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Two-Midnight Rule

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Appeals

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CMS Ruling 1498-R

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Medicare Advantage/Medicare + Choice/Managed Care Part C Days (Part C Days)

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Rural Floor Budget Neutrality Adjustment

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Equitable Tolling

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ELECTRONIC HEALTH RECORD The electronic health record (EHR) incentive program was authorized by the 2009 American Recovery and Reinvestment Act. The program has paid about $19 billion to physicians and hospitals that install and use qualified EHRs.

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ELECTRONIC HEALTH RECORD The Medicare EHR program provides incentive payments to eligible professionals, eligible hospitals, and critical access hospitals (CAHs) as they adopt, implement, upgrade, or demonstrate meaningful use of certified EHR technology. Eligible professionals can receive up to $44,000 over five years under the incentive program. Eligible professionals who provide services in a health professional shortage area can receive an additional incentive. To receive the maximum benefit, Medicare eligible professionals had to begin participation in 2012. Penalties for Medicare providers that do not meet the program’s requirements begin in 2015. 4

ELECTRONIC HEALTH RECORD The Medicaid EHR incentive program will provide incentive payments to eligible professionals, eligible hospitals, and CAHs as they adopt, implement, upgrade, or demonstrate meaningful use of certified EHR technology in their first year of participation and demonstrate meaningful use for up to five remaining participation years. The program is voluntarily offered by individual states and territories and began as early as 2011. However, the last year a Medicaid-eligible hospital may begin the program is 2016. Eligible professionals can receive up to $63,750 over the six years that they choose to participate in the program. Hospital payments are based on several factors, beginning with a $2 million base payment. There are no penalties for Medicaid providers that do not meet the program’s requirements.

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ELECTRONIC HEALTH RECORD Hospitals will have an extra month to attest to meaningful use under the Medicare EHR incentive program, following the delay of the Feb. 28 deadline. Providers will have until 11:59 pm on March 31 to submit their 2013 attestations, the Centers for Medicare & Medicaid Services (CMS) announced, but only until March 15 to retroactively attest to both garner bonus payments and avoid 2015 Medicare payment cuts. See HFMA Healthcare Business News, “HER Attestation Delayed to March 31” (February 7, 2014).

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MEDICAID EXPANSION The Affordable Care Act authorizes states to expand Medicaid to adults under age 65 with income of up to 133 percent of the federal poverty level (approximately $15,280 for a single adult in 2013) and provides unprecedented federal funding for these states. The Federal government will pay for 100% of the cost of coverage for newly eligible individuals through 2016, and pay no less than 90% of the cost subsequently. Expanded coverage thanks to the Affordable Care Act through the Medicaid program and through Health Insurance Marketplaces is expected to significantly reduce uncompensated care borne by hospitals and other providers.

At the same time as the Affordable Care Act expands coverage that reduces levels of uncompensated care, it also reforms Medicaid DSH allotments to reflect anticipated changes in coverage. Currently, states make Medicaid DSH payments to hospitals that serve a disproportionate share of low income patients and have high levels of uncompensated care costs. States have broad discretion to distribute Medicaid DSH payments to hospitals, subject to hospital-specific payment limits and state-wide DSH allotments. DSH allotments vary among states. The Affordable Care Act directs that there be better targeting of this funding towards uncompensated care. See CMS Fact Sheet, Medicaid State Disproportionate Share Hospital Allotment Reductions Final Rule (September 13, 2013) 7

MEDICAID EXPANSION Coverage under the Affordable Care Act is to be expanded to reduce levels of uncompensated care. Medicare and Medicaid DSH allotments are to be reformed under the Affordable Care Act to reflect the changes in coverage.

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MEDICAID EXPANSION On December 18, 2013, Congress passed a two-year budget deal that among other things delayed Medicaid DSH cuts from this year to 2016. However, now the cuts will increase by $3.9 billion over 10 years.

Hospitals pushed for this delay because the reduced rate of uninsured used to justify the cuts was not expected to occur because of the enrollment problems and the states not expanding Medicaid. See HFMA Healthcare Business News, “Congress Passes DSH Delay, Sequester Extension” (Dec. 19, 2013). 9

MEDICAID EXPANSION Assumption “As a result of the Affordable Care Act, millions of Americans will have access to health insurance coverage through qualified health plans offered through Health Insurance Exchanges (also called Marketplaces) or through Medicaid and Children’s Health Insurance Program. This increase in the number of individuals having access to health insurance is expected to significantly reduce levels of uncompensated care provided by hospitals.” See 78 Fed. Reg. 57293 (2013) 10

MEDICAID EXPANSION Reality Study: 5.2 Million Poor, Uninsured Adults To Fall Into ACA “Coverage Gap.” • Kaiser Health News (10/17, Galewitz) reports that a Kaiser Family Foundation study has found that “about 5.2 million poor, uninsured adults will fall into the ‘coverage gap,’ created by 26 states choosing not to expand Medicaid under the federal health law next year.” See Health and Life Sciences Law Daily (October 17, 2013) 11

NEW MEDICAID DSH METHODOLOGY The statute provides significant federal financial support for states to extend coverage to low-income adults under section 1902(a)(10)(i)(VIII) of the Act. • CMS does not believe this Methodology would unfairly penalize states that do not extend this coverage.

CMS intends to collect all of the data for the reform methodology directly from the States. CMS will then use this data to determine which providers are deemed disproportionate share under section 1923(b) of the Act. See 78 Fed. Reg. 57294-57295. 12

NEW MEDICAID DSH METHODOLOGY The reform methodology incorporates five (5) factors to take into account when developing this methodology. • Factor 1: Low DSH Adjustment Factor (LDF) • Low DSH states receive smaller reductions.

• Factor 2: Uninsured Percentage Factor (UPF) • States with lowest percentages of uninsured individuals receive larger reductions.

• Factor 3: High Volume of Medicaid Inpatients Factor (HMF) • States that do not target their DSH payments to hospitals with high volumes of Medicaid beneficiaries receive larger reductions.

• Factor 4: High Level of Uncompensated Care Factor (HUF) • States that do not target their DSH payments on hospitals with high levels of uncompensated care receive larger reductions.

• Factor 5: Section 1115 Budget Neutrality Factor (BNF) • States that have increased coverage under section 1115 demonstrations as of July 31, 2009, and adjusted their DSH allotments will have these 13 adjustments taken into account.

NEW MEDICAID DSH METHODOLOGY CMS will consider these five (5) factors “to determine each state’s annual state-specific annual DSH allotment.” This methodology is supposed to lessen the impact on low DSH states, on states that have targeted DSH payments to hospitals that have high volumes of Medicaid and on hospitals that have high levels of uncompensated care. See 78 Fed. Reg. 28555 (2013). 14

NEW MEDICAID DSH METHODOLOGY

See 78 Fed. Reg. 28564 (2013).

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NEW MEDICAID DSH METHODOLOGY

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NEW MEDICAID DSH METHODOLOGY

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NEW MEDICAID DSH METHODOLOGY

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NEW MEDICAID DSH METHODOLOGY

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MEDICARE DSH REIMBURSEMENT

Total federal spending: ($ billions) FY 2000 5.18 FY 2001 5.68 FY 2002 6.63 FY 2003 7.10 FY 2004 7.82 FY 2005 9.00 FY 2006 9.18

FY 2007 9.40 FY 2008 10.12 FY 2009 10.42 FY 2010 10.83 FY 2011 11.59 FY 2012 11.93

• Source: CMS, Office of the Actuary 20

MEDICARE DSH RULE FOR FFY 2014 Effective Federal Fiscal Year 2014 • New DSH formula •

25% based on current formula •

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25 percent of what hospital would have been be paid under existing DSH payment formula

75% based on uncompensated care •

New payment based in part on uncompensated care

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FINAL DSH RULE FOR FFY 2014 Factor 1 - 75% of amount which would have been paid under old DSH formula •

CMS estimates this to be $9.579 billion

DSH Payment under old rule = $12.772B x 75% = $9.579B

Factor 2 - 1 minus percent change in uninsured population •

CMS estimate this to be 94.3%

Uninsured percentages based on CBO estimates • Uninsured in 2013 (based on 2010 report) = 18%, • Estimate for 2014 published in Jul 2013 = 17%.

1-[(.17-.18)/.18] = 1 - .0555 = .944 less statutory reduction .001 = .943

$9.579B x .943 = $9.033B •

This amount is fixed prospectively • Actual amounts paid may exceed or fall short

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FINAL DSH RULE FOR FFY 2014 Factor 3 - Percent of individual hospital uncompensated care costs to total uncompensated care costs • • • •

• •

• •

This represents each hospital’s “piece of the pie” CMS discusses the use of S-10 data CMS indicates S-10 data is not yet appropriate to use CMS proposes a proxy for uncompensated care is to count low income patients CMS finalizes Medicaid eligible days and SSI days as a proxy for uncompensated care Interim uncompensated care payments will be distributed on a per discharge basis Factor 3 table includes a per-claim amount (by provider) Per discharge interims payments for uncompensated care will now be in pricer 23

ISSUANCE OF THE NPRS Issued for fiscal years 2007, 2008 and 2009 and even some 2010 Cost Reports Various issues that may need to be appealed or reopened: • Disproportionate Share Hospital (DSH) Calculation • • • • •

SSI percentage Ratios (SSI%) – Medicare Proxy (Systemic Errors and Recalculations) Medicare Part C Days Dual Eligible Days – Exhausted/Medicare Secondary Payor (MSP)/No Pay Days 340-B qualification DSH Eligible Days – Medicaid Proxy

• Bad Debts •

• • • •

Crossover – Medicare/Medicaid

IME / GME Rural Floor Budget Neutrality Adjustment (RFBNA) Outliers Two-Midnight Rule

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ISSUANCE OF THE NPRS: RECOMMENDATIONS Schedule deadlines for Reopenings • Three (3) years from the date of the NPR

Schedule deadlines for Appeals • 180 days from the NPR date for Appeals •

Board must receive Provider’s request no later than 180 days after the Provider received the determination being appealed

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Provider is presumed to have received the determination 5 days after issuance, unless established to the contrary by a preponderance of the evidence. (42 C.F.R. § 405.1801(a)(1))

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Date of receipt by the Board is date of delivery if delivered by a nationallyrecognized courier, or the date stamped “received” if delivered otherwise, unless established to the contrary by a preponderance of the evidence

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Determination of date of receipt is not subject to appeal

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ISSUANCE OF THE NPRS: RECOMMENDATIONS Order MEDPAR Data through the Centers for Medicare and Medicaid Services (CMS) • Data Usage Agreement (DUA) process

Appeal your NPRs for self- disallowed items (protest) or items adjusted during audit • Whether through an individual appeal or Group Appeal

Join Group Appeals • Strength in numbers • May not have a choice

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AMENDING THE COST REPORT Amend 2009 – 2012 filed cost reports (may or may not be accepted)… • Protested Items - for any self-disallowance items such as • RFBNA (through FY 2011) • SSI% • Medicare Part C • Dual Eligible Days – Exhausted Days / Medicare Secondary – No Pay Days • Additional Medicaid Eligible Days • Bad Debts – Crossovers (Medicare / Medicaid) • Outliers • Two-Midnight Rule 27

AMENDING THE COST REPORT A provider may file or the MAC may require an amended cost report to: 1. Correct material errors detected subsequent to the filing of the original cost report. 2. Comply with the health insurance policies or regulations, or 3. Reflect the settlement of a contested liability. See HIM 15-1, § 2931.2

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AMENDING THE COST REPORT What to send: • Cover letter to MAC • Relevant Worksheet (s) • New or revised list of protested items • Signed certification page • Electronic cost report (ECR) data file (resubmit) See HIM 15-1, § 2931.2

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2 MIDNIGHT RULE 2014 IPPS Final Rule gave an “appropriate” definition of an inpatient admission • When a patient stays in the hospital over two midnights • CMS giving three months to get acclimated before case reviews begin…Amnesty Period = Oct 1 – Dec 31, extended to Oct 2014 • CQ (2/4, Young, Subscription Publication) reports that Medicare’s two-midnight rule has been delayed by six months. The rule clarifies inpatient versus outpatient care. Medicare Part A will consider a patient stay as inpatient if it spans two midnights. The delay gives hospitals “time to both work on in-house tools and systems needed to comply with the new regulation and to try to persuade federal officials to alter the regulation.” 30

2 MIDNIGHT RULE CMS Reasoning behind the Rule • Limit the use of observation status to reduce the financial burden • Must protest and item if no adjustment on cost report • How will the rule be interpreted and applied? • Proactively reduced the Inpatient Payment Rate by .2% • Actuarial analysis suggest an increase of 40,000 admissions

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THE APPEALS GAME There are three (3) players in the Medicare cost report appeals arena. • The Provider • Appeals adjustments

• The Intermediary • Defends adjustments

• The PRRB • Strong interest in docket management • If a case can be dismissed, it will be dismissed

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THE APPEALS GAME New PRRB Rules (Effective March 1, 2013) Harder to win and to file cost report appeals More documentation than ever before Strict interpretation of the jurisdictional rules

Must protest items want to appeal on the cost report

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BOARD ALERT 9 Updated Model Forms Rule Changes: •

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• •

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All correspondence must be served on the MAC and BCBSA (appeals support contractor) It is the Provider’s and the Representative’s responsibility to keep all contact information up to date with the Board, including the current email address, as correspondence is frequently issued by the Board electronically Additional documentation requirements when Filing a Form D to transfer an issue from an individual appeal to a group appeal as well as when filing a Form E to file directly from a Final Determination into a group appeal Schedules of providers with supporting documentation must be sent simultaneously to the Lead MAC and the Board Rule 21 has been significantly revised to include additional informational requirements on the Schedule of Providers (Model Form G) and additional supporting documentation requirements 5 copies of final position papers must be submitted to the Board 7-10 business days prior to a Board hearing When appealing a Revised NPR, additional documentation is now required to support that the issue under appeal was revised in the Revised NPR pursuant to 42 C.F.R § 34 405.1889

APPEAL OF REVISED NPR: REGULATION Pre-8/21/2008 Where a revision is made in a determination or decision on the amount of program reimbursement after such determination or decision is reopened as provided by § 405.1885, such revision shall be considered a separate and distinct determination or decision to which the provisions of [Medicare regulations governing appeals] are applicable. See 42 C.F.R. § 405.1889.

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APPEAL OF REVISED NPR: REGULATION 8/21/2008 AND LATER (a) If a revision is made in a Secretary or intermediary determination or a decision by a reviewing entity after the determination or decision is reopened as provided in § 405.1885 of this subpart, the revision must be considered a separate and distinct determination or decision to which the provisions of § 405.1811, § 405.1834, § 405.1835, § 405.1837, § 405.1875, § 405.1877 and § 405.1885 of this subpart are applicable.

(b) (1) Only those matters that are specifically revised in a revised determination or decision are within the scope of any appeal of the revised determination or decision. (2) Any matter that is not specifically revised (including any matter that was reopened but not revised) may not be considered in any appeal of the revised determination or decision. See 42 C.F.R. § 405.1889 36

DISCRETIONARY JURISDICTION In contrast to the failure of the provider to claim an item that is allowable, a provider may “self-disallow” to preserve an issue for appeal • • •

Norwalk Hospital v. Blue Cross Blue Shield Ass’n/Nat’l Gov’t Serv., Inc., PRRB Dec. No. 2012-D14 The William W. Backus Hospital v. National Government Services, CMS Admin. Dec. (February 1, 2013) 42 C.F.R. § 405.1803(d), 42 C.F.R. § 405.1811 and 42 C.F.R. § 405.1835

“Self Disallowance” via “Protesting” •

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Effective With Cost Reporting Periods Ending On Or After Dec. 31, 2008, Providers Will Not Be Granted Appeal Rights For Items Unless Either Expressly Claimed On A Cost Report Or Self-disallowed As A Protested Amount On A Cost Report. Thus, The Provider Files The Cost Report Consistent With Law, But Under Protest PRRB Rule 7.2

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JURISDICTIONAL CHALLENGES The PRRB is currently questioning jurisdiction when a provider appeals an issue not adjusted or protested for all cost reporting periods ending on or after December 31, 2008

The PRRB is generally denying jurisdiction Need to amend cost reports that have not had an NPR issued Protest – It may be your only avenue to appeal an issue 38

JURISDICTIONAL DECISIONS

The appeal of a PRRB jurisdictional decision is not ripe until the PRRB issues a decision disposing of the case in its entirety Thus, in a multi issue case, appeal of the denial of jurisdiction over one issue only becomes ripe when the PRRB decides all the issues on their merits and thus disposes of the entire case

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CONSIDERATIONS FOR APPEALING: SHOULD I GO TO COURT? The Best Offense is a Good Defense •

In light of the time, cost and speculative outcome associated with jurisdictional appeals, a provider is well advised to attend to and if possible to resolve jurisdiction issues at the level of the PRRB

• • •

Request PRRB reconsideration Request CMS Administrator review Appeal to Federal court

Cost/Benefit Analysis •

The probability weighted cost of a jurisdictional appeal should be compared to the underlying amount of payment to be recovered if the jurisdictional appeal is successful

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A successful jurisdictional appeal returns the case to the PRRB, which does not necessarily mean that a provider will prevail 40

CMS RULING 1498-R Pursuant to CMS Ruling 1498-R, the PRRB Must Remand the Following DSH Issues: • Supplemental Security Income (SSI), • Non-covered inpatient days for patients entitled to Medicare Part A and days where the patient’s Part A benefits were Exhausted for discharges before October 1, 2004 (Exhausted Dual Eligible days) and • Labor/Delivery Room inpatient days (Labor Room days) for cost reports beginning prior to October 1, 2009.

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REMANDS Two (2) Types of Remands • Alternative •

Best for Individual appeals

• Standard •

Best for Group appeals

If you have jurisdictional problems, always ask for a standard remand

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CHALLENGE TO THE RULING: APPEALS PROCESS Trinity Health, d/b/a St. Joseph Mercy Oakland v. Sebelius (Case 1:10-cv-02070 (PLF)) •

In 1998, QRS filed an appeal on behalf of St Joseph Mercy Oakland for the Fiscal Year End 6/30/1995.

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In November 2008, QRS had a Hearing before the PRRB, but the PRRB did not render a decision until August 2010.

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PRRB remanded the case, but also decided that the additional SSI Days had to be incorporated into the Medicare fraction of the Provider’s DSH calculation upon remand.

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Administrator reviewed and reversed the PRRB’s Decision to include the SSI Days.

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QRS appealed the Administrator’s reversal to the District Court in the District of Columbia.

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The Case settled in June 2012. 43

CHALLENGE TO THE RULING: APPEALS PROCESS Catholic Health Initiatives - Iowa Corp. d/b/a/ Mercy Medical Center - Des Moines v. Sebelius (Case No. 1:10-cv-00411 (RCL)) Picture a law written by James Joyce and edited by E.E. Cummings. Such is the Medicare statute, which has been described as “among the most completely impenetrable texts within human experience.” Rehab. Ass’n of Va. v. Kozlowski, 42 F.3d 1444, 1450 (4th Cir. 1994). Certain provisions of this labyrinthine statutory scheme are at issue in this case, which concerns a hospital seeking review of a final decision of the Secretary of the Department of Health and Human Services, who denied it certain payments it believes it is owed for providing care to low-income patients. See Memorandum Opinion, pg. 1. 44

CHALLENGE TO THE RULING: APPEALS PROCESS Catholic Health Initiatives - Iowa Corp. d/b/a/ Mercy Medical Center - Des Moines v. Sebelius (Case No. 1:10-cv-00411 (RCL)) •

The Provider appealed the Administrator’s decision reversing the PRRB stating that

CMS has a “long-standing policy” of “excluding exhausted days from the Medicaid fraction . . .” •

The District Court held that this was not a long-standing policy, but retroactive rulemaking

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This case was appealed to the D.C. Court of Appeals and heard on April 15, 2013

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The D.C. Court of Appeals issued its’ decision on June 11, 2013 reversing the district court’s holding and stated the policy on which the agency relied in this case was first announced in an adjudication in 2000, not in the 2004 rulemaking

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The D.C. Court of Appeals further held that the agency’s interpretation of the statute is permissible, and the denial of reimbursement was not arbitrary and capricious

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The Court also held that the Provider did not show that it relied to its detriment on the position the agency allegedly held before 2000

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CHALLENGE TO THE RULING: EJR Metropolitan Hospital v. U.S. Dept. of Health and Human Services, 702 F. Supp. 2d 808 (W.D. Mich. 2010), rev’d, No. 11-2465/2466 (6th Cir. 2013) •

The PRRB also granted an EJR request challenging 42 C.F.R. § 412.106(b)(2)(i), effective October 1, 2004, which eliminated the word “covered” from the Medicare fraction definition

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This change in the regulation, which applies to fiscal years prior to October 1, 2004 in CMS Ruling 1498-R, requires inclusion of all Medicare Part A exhausted days in the Medicare fraction.

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The Federal District Court in the Western District of Michigan held that the regulation is inconsistent with the Medicare DSH statute and the meaning of entitled to benefits under Medicare Part A.

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On March 27, 2013, the 6th Circuit Court of Appeals reversed the ruling of the district court and remanded the case with instruction to enter judgment in favor of CMS. 46

CHALLENGE TO THE RULING: APPEALS PROCESS The Queen’s Medical Center v. Sebelius (Case 1:10-cv-00434 (SOM-LEK) •

The Provider appealed the Administrator’s reversal of the PRRB’s Decision to include Exhausted Dual Eligible days in the Medicaid fraction of the Provider’s DSH calculation.

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The Provider requested, among other things, an injunction prohibiting CMS from implementing Ruling 1498-R.

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This case settled confidentially.

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PART C DAYS Settled or Pending Appeals in Federal Court Over the Inclusion of Medicare Part C Days in Medicaid Fraction of DSH Calculation • Northeast Hospital Corporation v. Sebelius, 657 F.3d 1 (D.C. Cir. 2011) • Pre 10/1/2004

• Baptist Medical Center v. Sebelius, 855 F. Supp. 2d 1 (D.D.C. 2012) • Pre 10/1/2004

• Alegent Health-Immanuel Medical Center, et al. v. Sebelius (Case No. 1:11-cv-00139 (EGS)) • Pre 10/1/2004

• Allina Health Services, et al. v. Sebelius (Case No. 13-5011) • 2007 – 2008 • Hearing before the D.C. Court of Appeals was February 6, 2014

• Baptist Medical Center, et al. v. Sebelius (Case No. 1:11-cv-01273 (CKK)) • 1995 - 1998

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RURAL FLOOR In 1997, Congress enacted the Balanced Budget Act (“BBA”) of 1997, § 4410(a), Pub. L. No. 105-33, requiring the wage index for hospitals located in an urban area to not be less that the wage index for hospitals located in rural areas in the same state.

The BBA of 1997 provided that “the area wage index applicable . . . to any hospital which is not located in a rural area . . . may not be less than the area wage index applicable . . . to hospitals located in rural areas in the State in which the hospital is located.” 49

RURAL FLOOR Rather than adjusting area wage indexes to achieve budget neutrality, the Secretary instead adjusted the standardized amount. The Secretary then carried forward the adjusted standardized amount from year to year. • Example: If the rural floor threatened to increase aggregate payments in a particular year, a downward adjustment to the standardized amount was applied to offset the effect of the rural floor.

The Problem: The Secretary duplicated prior adjustments by each year calculating the full amount of the adjustment necessary to counteract the effect of the rural floor and then applying that adjustment to a figure that includes adjustments carried over from previous years. The Cumulative Effect: The improperly duplicative budget neutrality adjustments reduced the payment levels below what they otherwise should have been. 50

RURAL FLOOR In Cape Cod Hosp. v. Sebelius, 630 F.3d 203 (D.C. Cir. 2011), the D.C. Circuit held that the Secretary’s application of the RFBNA for FY 2007 and 2008 was improperly computed as a result of methodological/mathematical errors on the part of the Secretary. See 76 FR 25787, 25787-26084 (May 5, 2011). Accordingly, under Cape Cod, the Secretary is obligated to correct the RFBNA to afford full and complete relief to the Provider regarding this issue. 51

RURAL FLOOR Based on Cape Cod, Providers settled and received payment for this issue from CMS just last year. Numerous Providers have since appealed the same issue and now CMS is offering to settle with these Providers as well. Still time to appeal the issue since the delay of the issuance of the NPRs, but better hurry! 52

EQUITABLE TOLLING The Supreme Court decided on January 22, 2013 that Equitable Tolling does not apply to the 180-day appeal filing deadline. The Providers appealed the Baystate DSH/SSI issue and were seeking to have the appeals filing deadline equitably tolled based on the concealment by CMS of the SSI systemic errors. Court ruled 9-0 against the Providers. 180-day filing deadline from receipt of the NPR is not subject to Equitable Tolling, but do have the “Good 53 Cause Exception.”

EQUITABLE TOLLING Good Cause Exception • The appeal regulations specifically afford the Board the right to allow a “good cause” extension of filing deadlines for up to three years where a provider was prevented by circumstances beyond its control from filing its appealing within 180 days. See 42 C.F.R. § 405.1885(a) – (c). • The regulation, in other words, has struck a balance between the necessity of administrative finality and ensuring that the “right” reimbursement is achieved, and it has struck that balance at three years. • While even gross errors that are not appealed within 180-days (through no fault of the provider) become un-appealable and final after three years, within the three-year window there remains a chance to remedy these errors through the Board’s exercise of its discretion to grant a good cause filing extension. 54

WHERE DO WE GO FROM HERE? Changes in Medicaid and Medicare DSH • Reduction in reimbursement, more important than ever to preserve your appeal rights

Changes in Appeals Rules • Many pitfalls, Board is ruling against Providers on jurisdiction • Must protest and item if no adjustment on cost report

CMS Ruling 1498-R SSI Methodology applied to all NPRs that have issued over the last year • Board is no longer remanding • Board is breaking DSH/SSI issue into multiple components

Appeal, Appeal, Appeal 55

ABOUT THE SPEAKERS Kristin L. DeGroat, Esq. Staff Attorney

Corinna Goron, President

Healthcare Reimbursement Services, Inc. & Quality Reimbursement Services, Inc.

Healthcare Reimbursement Services, Inc.

3421 E. Hunter Bend Court Mansfield, TX 76063 Phone: (626) 445-5092, Ext. 7501 Fax: (682) 518-5082

17101 Preston Road, Suite 220 Dallas, TX 75248 Phone: (214) 210-0881 Fax: (214) 210-0889 Email: [email protected]

Email: [email protected] & [email protected] 56