10.” This Alert, which is described below, has potential implications for all Medicare Disproportionate Share Hospital (DSH) payment appeals currently pending before the PRRB where a hospital claims additional Medicaid eligible days that were not included in the hospital’s as-filed cost report. Alert 10 requires hospitals to provide to the PRRB within 60 days of the date of Alert 10 certain information that the PRRB will use to determine whether it has jurisdiction over the Medicaid eligible days issue.
Alert 10 follows the PRRB’s decision in Danbury Hosp. v. Blue Cross/Blue Shield Ass’n, PRRB Dec. No. 2014-D3 (Feb. 11, 2014), where the PRRB determined that it lacked jurisdiction over additional DSH Medicaid eligible days that the hospital did not claim in its as-filed its cost report. The hospital argued that it could not have practically and appropriately included the additional Medicaid days in its as-filed cost report because, at the time the cost report was filed, it lacked certain necessary information that it could obtain only from the State of Connecticut.
In dismissing the hospital’s request for these additional Medicaid eligible days, the PRRB held that, if the days could not be claimed in the as-filed cost report, it was incumbent upon the hospital to furnish the PRRB with information showing why the hospital faced an “impediment” with respect to doing so. The PRRB explained the type of information it would have expected from the hospital in order for the PRRB to have jurisdiction over the Medicaid eligible days issue under these circumstances. Indeed, prior to issuing the Danbury decision, the PRRB asked the hospital to furnish this type of information and the hospital failed, in the PRRB’s view, to adequately do so. The CMS Administrator declined to review of this decision and the PRRB’s decision is current being challenged in court.
Consistent with the ruling in Danbury, the stated purpose of Alert 10 is to “allow parties to an appeal currently pending before the Board that includes the [DSH] paid/unpaid Medicaid eligible days issue … an opportunity to supplement the record based on [Danbury].” The Alert gives providers 60 days from the date of the Alert (May 23, 2014), or until July 22, 2014, to supplement the record for any similar appeals with information that might be relevant to the PRRB’s determination of whether it has jurisdiction over the issue. The Alert notes that the PRRB is particularly interested in receiving the following categories of information from providers:
1. “A detailed description of the process that the provider used to identify and accumulate Medicaid paid and unpaid eligible days that were reported and filed on the Medicare cost report at issue.”
2. “The number of additional Medicaid paid and unpaid eligible days that the provider is requesting to be included in the DSH calculation.”
3. “A detailed explanation why the additional Medicaid paid and unpaid eligible days at issue could not be verified by the state at the time the cost report was filed. If there is more than one explanation/reason, identify how many of these days are associated with each explanation/reason.”
However, the Alert does not limit the information that can be provided. Once the 60 day window expires, the Alert states that the PRRB “will begin making jurisdictional decisions on the Issue for any pending appeal based upon the record at that time.”
Hooper, Lundy & Bookman, PC (HLB) is aware that many hospitals have appeals pending before the PRRB that include a claim for additional Medicaid eligible days that were not included in the as-filed cost report. In light of Alert 10, these hospitals and their designated appeal representatives before the PRRB, if applicable, should immediately review the information previously furnished to the PRRB in support of this issue and consider whether supplementing the record on appeal is warranted.
It is important to note that, in light of the language of Alert 10 and the Danbury decision, the fact that a provider furnishes additional information to the PRRB in response to Alert 10 will not guarantee that the PRRB will ultimately decide that it has jurisdiction over this issue. The PRRB’s jurisdictional ruling will likely turn on the details surrounding how the issue was originally raised on appeal and the nature of any additional information submitted to the PRRB in support of the issue. A hospital has the right to appeal any adverse jurisdictional decision issued under this Alert.
Because PRRB jurisdiction is an area fraught with legal technicalities, HLB encourages all hospitals that have appeals pending before the PRRB that include this DSH-Medicaid eligible days issue to consult with legal counsel regarding how Alert 10 may apply to their appeals and, assuming the Alert is applicable to them, how to furnish additional information to the PRRB. Given the 60 day time window established in Alert 10, time is of the essence: Hospitals should begin efforts to assess the impact of the Alert, and respond accordingly, as soon as possible.
If you have questions about PRRB Alert 10, please contact Laurence Getzoff (310-551-8175) or Jordan Keville (310-551-8103) in HLB’s Los Angeles office or Robert Roth (202-580-7701) in HLB’s Washington, DC office.