Latest News | Appeals

From: CMS Website

CMS allows the use of the DSH data for a limited period of time.  Over the past several years we have obtained hundreds of the SSI files for use in our Medicare appeals.  Past DUAs rarely had a return date included in the form.  CMS is now working to get a handle on this outstanding information. 

For DUAs without expiration dates, CMS is sending out e-mails with a 90 day notification for action.  We have received close to two hundred of these e-mails over the past week.  If you were the original requestor, you should also be receiving these e-mails.

According to CMS instructions, action is needed to either request an extension or to close the DUA and confirm that the data is destroyed.  The extension and or closure according to the instructions must be submitted by the requestor (Hospital).  Toyon is the custodian of the SSI data.  We are in the process of developing a process to handle the DUAs.  In our particular case, virtually all of the data files being used are still active as part of our Medicare SSI appeals.  CMS is requiring that the extensions be submitted to them between 60 – 90 days from the expiration date identified in the e-mail.

We are diligently working on sorting these out and will be communicating with the requestors in the near future.  The request for extension is very simple and we will be providing the framework of the e-mail to send to CMS.

Continued use of the DSH data will need to be updated annually.  Where the data is no longer needed, all of the original files and related linked files are required to be destroyed.  A signed confirmation of the destruction of the data is required as part of the final “closure request” submission. 

For questions, please contact Glenn Bunting or Ron Knapp at 925-685-9312.

Data Use Agreement (DUA) – Extensions & Closures

From: CMS Website

CMS SSI detail for data released on March 16, 2012 is now available to be requested by hospitals.  This information is free but requires a DSH Data Use Agreement be prepared and included in the request.  The requests are now all handled on-line.

We recommend all hospitals that receive Medicare DSH entitlements request this information for review and scrutiny of the match process.  Click here to view the DUA form required to request this data.  This form is to be completed, scanned and sent by e-mail to CMS at DataUseAgreement@cms.hhs.gov.  Notification of the DUA number creations will be sent to the Requestor within 3-5 business days of receipt of the request.  The data will be shipped to the Custodian in approximately 6-8 weeks.

The SSI issue continues to be litigated particularly for CMS’s inclusion of the Medicare Advantage days now contained in the SSI ratio development.  Verification of the changes made in the match process communicated in CMS-1498-R need to be carefully reviewed to verify that the changes were actually made.

If you have any questions concerning the process please contact either Glenn Bunting or Ron Knapp at 925-685-9312.

SSI Data Available from CMS – FY 2006 – 2009

HHS Files Petition to Supreme court on Equitable Tolling Issue
From: King & Spalding 4/23/12

Note: Toyon Associates is pursuing this equitable tolling issue for several of our clients.

Article Excerpt:
On April 13, 2012, Health and Human Services Secretary Kathleen Sebelius filed a petition for writ of certiorari with the U.S. Supreme Court requesting that the Court overturn the D.C. Circuit’s ruling that equitable tolling applies to the 180-day time limit for providers to file administrative appeals of final Medicare cost report payment determinations. Sebelius v. Auburn Regional Medical Center, U.S., No. 11-1231, petition for cert. filed Apr. 13, 2012.

At issue is the June 2011 decision, whereby the D.C. Circuit’s three-judge panel ruled that equitable tolling is available for Medicare cost report appeals because a claim for Medicare payment is analogous to a contract claim. Auburn Regional Medical Center, et al. v. Sebelius, 642 F.3d 1145 (D.C. Cir. 2011). By way of background, the equitable tolling issue arose in the context of provider appeals of the SSI Ratio component of the disproportionate share hospital (DSH) adjustment for fiscal years 1987-1994. The providers did not appeal the SSI Ratio issue to the Provider Reimbursement Review Board (PRRB) until they learned of the issue in 2006 (as a result of the Baystate litigation), more than a decade after the 180-day window for appealing their Medicare cost reports had passed.
Read more…

Click here to view the Supreme Court petition submitted by HHS.

PRRB 2012-D12 -3/09/12 (FY 2001)

This case involved the FI’s denial of Nursing & Allied Health (N&AH) education costs associated with Medicare plus Choice (M+C) days. In FY 1998, the Provider submitted UB-92 “no-pay” claim forms to the FI for services supplied to M+C enrollees during FY 1998. The purpose of submitting the no-pay bills was to obtain payments from Medicare for DGME & IME reimbursements for these patients as authorized by the BBA and CMS transmittal A-98-21.

The Provider encountered problems with the FI processing these “no-pay” bills during FY 1998. Due to the difficulty of processing the “no-pay” bills and the low DGME & IME payments, the Provider discontinued submitting these FY 1998 claims.

This case ultimately revolves around the Provider’s request to include M+C choice days that were not processed by the FI for recovery of N&AH education costs. As this was a new process, the instructions of submission were not fully worked through by CMS.

The Board determined that the FI improperly disallowed the N&AH payments in the Provider’s FY 2001 with respect to the discharges of M+C beneficiaries for FY 1998 and remanded the case back to the FI for processing.

Read more: Medicare Nursing & Allied Health – Research Medical Center

This case involved one hospital located in the Fort Wayne MSA that requested correction to total paid hours to exclude services paid but not-worked from its wage data for purposes of calculating the wage index. The Provider supplied documentation of the paid, un-worked hours to the FI. The FI rejected the Provider’s request stating that the Provider’s information was not supported with detailed documentation. The Provider according to the FI included only summary documentation in support of their request and rejected the request. The Provider’s subsequent request to CMS was also denied.

The Board ruled in favor of the FI. They concluded that the Provider did not provide adequate documentation in their request.

Read more: Medicare Wage Index – Fort Wayne MSA (Indiana)

Medicare GME/IME – Rush University Medical Center

PRRB 2012-D8 – 2/8/12 (FY 1993-1994)

PRRB 2012-D9 – 2/8/12 (FY 1996)

The following GME/IME issues were decided on:

1. Elimination of 14 Pathology FTE residents for GME purposes — The provider contends that these residents were improperly excluded by the FI. They provided as evidence a letter from the
   Provider’s Pathology Department Chairman. The FI contends the documentation provided was “simply not good enough” as the letter was constructed 10 years after the FY. The Board ruled in favor of the FI on this issue.
2. Overstated available beds for IME bed count – The Provider contended that the available beds were overstated to the extent of beds taken out of service during the FY for a major construction project. The argued that the evidence showed that these beds would take a minimum of 72 hours to be placed back in service. The FI contends that the Provider did not show that the beds in controversy were taken out of service and made unavailable. The Board concluded that a majority of the beds taken out of service were unavailable to inpatients and ruled for the Provider.
3. Overstated available beds for IME bed count; observation bed days – The Provider contends that the IME bed count is overstated because it does not properly reflect the days that beds were not available for inpatients as a result of their use for a non-PPS services: outpatient observation bed services. There was a self-disclosure by the Provider for erroneous billings for Medicare outpatient observation services rendered after 7/1/93. The FI contends that the billing issue raised questions about the core reliability of the observation information. The Board found that the observation services in question should be excluded from the available bed count, ruling in favor of the Provider.
4. Exclusion of time spent by I&R in research for count of IME FTEs – The provider contends that the resident FTEs spending time in research should be included in the IME FTE count and that this is consistent with 42 CFR 412.105. The FI contends that per 42 CFR 413.5 & 413.9, the research services specifically preclude the payment of Medicare funds for research not directly related to treating particular patients. Therefore the state any time spent by residents performing research activities not directly related to patient care is excluded from the resident count. The Board decided in favor of the FI that the research FTE time should be excluded from the IME FTE count.

Medicare GME/IME – Doctors Medical Center of Modesto

PRRB 2012-D11 – 2/24/12 (FY 2001 – 2007)

This is a very involved case dealing with the transfer of the residency program from Stanislaus Medical Center (SMC), Modesto to the Provider in 1997 upon the closure of the hospital. The Provider is appealing the elimination of the claimed GME/IME reimbursements for the 2001 through 2007 periods claiming that the transaction constituted a merger of SMC into the Provider. An argument was also presented by the Provider that this could be considered a new program.

The FI in their original audit of the Provider determined that the program did not constitute a merger but was considered a new program. Subsequent to this both the CMS and the FI determined that this determination of a new program was incorrect and recouped all Medicare GME/IME entitlements.

The Board rejected
the Providers arguments citing that the facts of the case did not support a
determination that the Provider’s Program is either a new residency program or
that there was a merger between SMC and the Provider.

Medicare DSH – Norwalk Hospital

PRRB 2012-D14 – 3/19/12 (FY 2005)

In this appeal the FI challenged the PRRB’s jurisdiction over Medcaid eligible days where there was no adjustment made by the FI in the finalization of the Medicare cost report.  The Board concluded in this case that they do have jurisdiction over the DSH – Medicaid Eligible Days issue.

This decision provides an excellent presentation of the history of the DSH issue.  Glenn Bunting, our Appeals Vice President highly recommends review of this case if you are interested in understanding the chronology of this issue since it’s implementation in May 1986.

Read more:

From: US District Court of Columbia – 1/30/12

Great news from the US District Court of Columbia – Regarding the issue of Part A exhausted dual-eligible days and the inclusion of these patients in the Medicaid fraction for Medicare DSH purposes.  The DC court concluded that these types of days must be included in the Medicaid fraction for the period at issue.

This court followed the Northeast decision from the DC Circuit and concluded that CMS’s current policy on these days cannot be applied retroactively to periods before the 10/1/04 rule change.

Toyon has in place literally hundreds of years of appeals outstanding that this decision will apply to assuming CMS does not appeal the decision. We are hopeful that this will help move these appeal years to settlement resolutions over the next year.

Medicare GME/IME – Alegant Health Immanuel Med Ctr

PRRB 2012-D7 – January 20, 2012 (FYE 6/30/00 – 6/30/03)

There are two DGME/IME issues in this case:

1. Whether the Hospital had properly established an affiliation agreement with another Hospital for 10 resident FTEs that were disallowed by the Intermediary.
2. Whether there the claimed New Psychiatric Residency program met the new program requirements.

The PRRB ruled in favor of the Hospital in issue one and against the Hospital in issue two.