Recent Cost Report Appeal Issues PRRB and CMS Administrator Decisions 2013 Review

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1 Recent Cost Report Appeal Issues PRRB and CMS Administrator Decisions 2013 Review American Health Lawyers Association Institute on Medicare and Medicaid Payment Issues March 2013 Leslie Demaree Goldsmith, Esq. Principal Ober Kaler Grimes & Shriver 100 Light Street Baltimore, Maryland (410) Arthur E. Peabody, Jr., Esq. Lead Medicare Counsel Blue Cross Blue Shield Assn G Street, NW Washington, D.C. arthur.peabody@bcbsa.com (202) Susan Maxson Lyons, Esq. Acting Deputy Associate General Counsel for Litigation DHHS, Office of the General Counsel, CMS Division 330 Independence Ave., SW, Washington, D.C. Susan.Lyons@HHS.GOV (202) Overview Equitable Tolling Bad Debt At the Collection Agency Bad Debt Dual Eligible Beneficiaries Bad Debt Similar Collection Efforts Board Jurisdiction Costs Not Claimed Medical Education Prior Year Data DSH CMS Ruling 1498 DSH General Assistance Days 2 1

2 Equitable Tolling Supreme Court Says No Sebelius v. Auburn Reg l Med. Ctr., U.S., 133 S.Ct. 817 (2013) Providers appealed cost reports more than a decade past the deadline; argued CMS failed to advise of DSH computation error Court ruled provision of Medicare statute setting 180-day limit for filing appeals to PRRB: Was not jurisdictional Was not subject to equitable tolling 3 Bad Debts Still at Collection Agency Intermediary disallowed bad debts solely on ground that they were still at an outside collection agency. PRRB reversed for Providers; Administrator reversed for Intermediary. 2 Cases, Update: Universal Health Servs. (2011-D30), appealed, District Hosp. Partners v. Sebelius, No. 11-cv-1717, D.D.C. fully briefed Lakeland Regional Med. Ctr. (2012-D3), appealed, No. 12-cv-0600, D.D.C. fully briefed 4 2

3 Bad Debt Dual Eligible Beneficiaries Providers served beneficiaries eligible for both Medicare and Medicaid. Most Providers did not bill the State Medicaid programs because the Providers were not Medicaid providers. None of the Providers initially received RAs from the State. PRRB reversed in favor of Providers. Administrator reversed in favor of the Intermediary. 5 Bad Debt Dual Eligible Beneficiaries New Case: Maine Med. Ctr. (2013-D3) Old Cases, Update: Royal Coast Rehab Ctr. (2010-D13) and Reflections Wellness Ctr. (2010-D21), D.D.C., 10-cv-0902, stayed Inpatient Crossover Bad Debt Groups (2010-D20), Grossmont, D.D.C., for HHS, appealed 12/21/12 to D.C. Cir.,

4 Bad Debt Dual Eligible Beneficiaries Life Care Ctr. of Scottsdale (2010-D23) (Cove Asoc.) and Select Specialty Group (2010-D25), D.D.C., 10- cv-1316,10-cv-1356, dec. 3/26/12, upheld must bill policy and remanded Hope Horizon Ctr. (2011-D29), D.D.C., 10-cv-1570 Various Genesis Health Care (2011-D12), appealed D.N.J., Bad Debt Similar Collection Efforts New Case: Mountain States Health Alliance 05 Bad Debt Group Appeal (2013-D6), 3/4/13 Providers treated accounts the same for first 6 mos. (inhouse efforts) and second 6 mos. (primary collection agency). Providers subsequently sent some non-medicare account only to a secondary collection agency. PRRB upheld Intermediary disallowance, finding collection effort not reasonable because did not treat like amounts similarly. 8 4

5 Board Jurisdiction Costs Not Claimed Providers failed to request a cost on their cost report, generally due to oversight or becoming aware of issue at a later date. Statute at 42 U.S.C. 1395oo requires provider dissatisfaction as prerequisite to PRRB jurisdiction. PRRB found no jurisdiction. Administrator either declined to review or affirmed. 9 New Case: Board Jurisdiction Costs Not Claimed Norwalk Hosp. (2012-D4), D.Conn, 12-cv-1065, briefing stage Old Cases, Update: Mem l Hermann 2011-D42, S.D. Tex., 11-cv-3673, stayed for settlement negotiations Illinois Masonic Med. Ctr. (2011-D47), DDC, 11-cv- 0105, decided for HHS, no appeal 10 5

6 Medical Education Prior Year Data, Update Kaiser Found. Hosps. S. Cal. Region GME FTE CAP Groups (2011-D1) Issue: Does correction of FTE cap for FYs cost years require an impermissible reopening of FYs 1996 or 1998 cost reports? PRRB reversed Intermediary s refusal to revise cap. Administrator reversed in favor of Intermediary. D.D.C. reversed in favor of Providers, No , Dec D.C. Cir. affirmed D.D.C., No , March 3, DSH CMS Ruling 1498 Recent appeals challenging CMS Ruling PRRB granted EJR. Consolidated under Adcare Hosp. of Worcester, Inc. v. Sebelius, D.D.C., 10-cv Stayed pending resolution of Catholic Health Initiative v. Sebelius, D.D.C., 10-cv

7 DSH General Assistance Days Nazareth Hosp. & St. Agnes Med. Ctr. v. Sebelius, E.D. Pa., No Intermediary excluded PA GA days from numerator of DSH Medicaid Proxy. PRRB affirmed and Providers appealed to court. Court remanded to Adm. Was agency s treatment of patient days in 1115 demonstration projects vis-à-vis PA GA days unconstitutional, arbitrary or capricious. Adm. found differences in programs- legal basis, populations, sources of funding. 13 Questions 14 7