• CMS Broadens Its Frontal Assault on Provider Appeal Rights
  • October 7, 2008 | Author: Christopher L. Keough
  • Law Firm: King & Spalding LLP - Washington Office
  • In today’s Federal Register, HHS published a final rule, without advance notice or opportunity to comment, that may be intended to cut off a provider’s right to compel testimony or production of documents by Medicare contractors, such as a fiscal intermediary or carrier, a Medicare Administrative Contractor (“MAC”), a Recovery Audit Contractor (“RAC”), a Program Safeguard Contractor, or a State survey agency. 73 Fed. Reg. 53148.

    The rule amends the definition of “employee” in the HHS’ so-called “Touhey regulations” to include these Medicare program contractors and their employees. The Touhey regulations, in Part 2 of Title 45 of the Code of Federal Regulations, govern requests for testimony or documents in litigation in which the United States or a federal agency is not a party. Earlier this year, CMS amended the regulations governing provider appeals to the Provider Reimbursement Review Board (“PRRB”) to provide, among other things, that the CMS is not a party in appeals to the PRRB. 73 Fed. Reg. 30190, 30215-16 (May 23, 2008). Those regulations also eliminated a provider’s right to obtain discovery of documents or testimony from CMS in an appeal before the PRRB. Id. at 30217-24.

    The PRRB appeal regulations do purport to permit discovery from an intermediary (or MAC) in appeal before the PRRB, but today’s amendment to the Touhey regulations may render even that minimal due process illusory. Under the Touhey regulations, CMS need not produce requested testimony or documents by the agency or a current or former “employee” unless CMS determines that it would “promote the objectives of the Department.” See 73 Fed. Reg. at 53149. It appears that CMS has now quietly brought its frontal assault on provider appeal rights full circle, leaving providers with essentially no right to compel discovery of relevant evidence concerning Medicare payment determinations from anyone that has been involved in the determination.