HHS Issues Proposed Rule to Revise Departmental Appeals Board Procedures

On December 28, 2007, the Department of Health and Human Services published a Proposed Rule in the Federal Register, which would revise the procedures for the Departmental Appeals Board (DAB).

Generally, the Proposed Rule would require that the DAB not only follow Federal statutes and regulations in hearings and appeals procedures, but also follow published guidance issued by the Secretary of the Department of Health and Human Services (Secretary) to the extent such guidance is not inconsistent with applicable statutes or regulations.  The Proposed Rule would also provide the Secretary with the authority to review DAB decisions for errors in the application of statutes, regulations and interpretative policy. According to the Secretary, the Proposed Rule is needed to ensure consistency in decision making and to ensure that the Secretary's policies are being correctly implemented.

In its current form, the Proposed Rule does not include a process for either party to request the Secretary's review or address briefing procedures. Instead, the Proposed Rule seeks to "maintain flexibility" so that the Secretary can tailor the review process to the needs of a particular case.  However, the Proposed Rule does solicit comments on whether the regulations should specify procedures for the Secretary's review.

The changes contemplated by the Proposed Rule would impact various appeals procedures, including: (i) the review of certain determinations under 42 C.F.R. Part 498 and impacting certain provider's participation in the Medicare program; (ii) disputes governed by 42 C.F.R. Part 1005 and concerning the imposition of exclusions, civil monetary penalties and assessments related to health care fraud and abuse; and (iii) appeals governed by 42 C.F.R. Parts 422 and 423 and involving civil monetary penalties imposed on Medicare Advantage organizations and Medicare prescription drug sponsors.

The deadline for submitting comments on the Proposed Rule is January 28, 2008.