Group Appeal – Updated!
Sheppard Mullin Group Appeal of the Hospice Cap Regulation —
NAHA Information and Resources Page
Group Appeal resources on NAHA’s website:
- Group Appeal Engagement Letter
- Group Appeal List of Required Documents
- Group Appeal Hospice Information Worksheet
- PRRB Authorized representative Statement
- Format for a Hospice PRRB Appeal Letter
- Haven Hospice Final Judgment (docketed version) 20 August 2009
For more information contact Brian Daucher at (714) 424-2843 or at bdaucher@sheppardmullin.com.
In August 2009, NAHA member hospice Haven Hospice won its court challenge to the hospice cap regulation. Federal Judge George Wu entered final judgment against HHS finding the hospice cap regulation invalid and setting aside the 2006 cap demand to Haven Hospice. Under its terms, HHS must either return funds previously paid by Haven Hospice or apply those funds (including interest already paid) to a new demand.
Since then, more than ten other federal judges, in suits brought on behalf of individual hospices, have held the regulation invalid and precluded further application to those hospices.
But, the Haven Hospice and other decisions do nothing for other hospices that receive demand letters. Hospices that receive repayment demands should appeal such demands (within 180 days).
By doing so, hospices may reduce their liability and recover prior interest payments to HHS.
Sheppard, Mullin, Richter & Hampton (SMRH) serves as counsel to Haven Hospice and also represents a dozen other hospices in individual cases around the country, eight of whom have already obtained decisions providing relief from the unlawful regulation and repayment deamnds thereunder. No court has said that the regulation is valid.
Because litigation can be expensive, SMRH also has established Group Appeals to make it more affordable for hospices to defend their rights. In these Group Appeals, hospices joining the group will challenge the regulation in a single combined case. Complete terms of the Group Appeal are detailed in the Group Appeal Engagement Letter, but in summary:
- The Group Appeal is open to any hospice that has received a cap demand letter in the last three years.
- Hospices pay only costs until a benefit is achieved (initial deposit $500 per provider). Cost deposits will not be used to pay attorneys’ fees.
- SMRH will handle the PRRB appeals and lawsuit in Washington, D.C., in a group case, including appeals if necessary.
- Hospices agree to pay 15% of any net benefit (i.e., net reduction in repayment demands, interest savings), but only after such benefits are secured.
- Groups are already formed and in court with respect to FY 07 (for demands for fiscal year ending 10/31/07) and are formed and still open for FY 08 and FY 09 as well.
To join the Group Appeal, you will need to take each of the following steps:
- Sign and return the Engagement Letter with a $500 cost deposit;
- Sign and return to SMRH, on your hospice letterhead, the PRRB Authorization Letter;
- Fill out and return to SMRH a completed Hospice Fact Sheet; and
- Provide SMRH with cap repayment reports (whether demands or surpluses) FY 2004 – 2009.
We urge all hospices to appeal these unlawful demands.
If you are a hospice that has received a cap repayment demand letter within the past three years, you should carefully review your options.
For more information contact Brian Daucher at (714) 424-2843 or at bdaucher@sheppardmullin.com.
