42 C.F.R. § 405.1868

Board actions in response to failure to follow Board rules

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(a) The Board has full power and authority to make rules and establish procedures, not inconsistent with the law, regulations, and CMS Rulings, that are necessary or appropriate to carry out the provisions of section 1878 of the Act and of the regulations in this subpart. The Board's powers include the authority to take appropriate actions in response to the failure of a party to a Board appeal to comply with Board rules and orders or for inappropriate conduct during proceedings in the appeal.

(b) If a provider fails to meet a filing deadline or other requirement established by the Board in a rule or order, the Board may—

(1) Dismiss the appeal with prejudice;

(2) Issue an order requiring the provider to show cause why the Board should not dismiss the appeal; or

(3) Take any other remedial action it considers appropriate.

(1) Take other actions that it considers appropriate, such as—

(i) Issuing a decision based on the written record submitted to that point; or

(ii) Issuing a written notice to CMS describing the contractor's actions and requesting that CMS take appropriate action, such as review of the contractor's compliance with the contractual requirements of §§ 421.120, 421.122, and 421.124 of this chapter; and

(2) Not use its authority to take an action such as, a sanction, reversing or modifying the contractor's or Secretary's determination for the cost reporting period under appeal, or ruling against the contractor on a disputed issue of law or fact in the appeal.

(d)(1) If the Board dismisses the appeal with prejudice under this section, it must issue a dismissal decision dismissing the appeal. The decision by the Board must be in writing and include an explanation of the reason for the dismissal. A copy of the Board's dismissal decision must be sent promptly to each party to the appeal (as described in § 405.1843 of this subpart).

(2) A dismissal decision by the Board is final and binding on the parties unless the decision is reversed, affirmed, modified, or remanded by the Administrator under § 405.1875(a)(2)(ii), and § 405.1875(e) or § 405.1875(f) of this part, no later than 60 days after the date of receipt by the provider of the Board's decision.

(i) The Board decision is inoperative during the 60-day period for review by the Administrator, or in the event the Administrator reverses, affirms, modifies, or remands the decision within the period.

(ii) The Board may reopen and revise a final Board decision in accordance with §§ 405.1885 through 405.1889 of this subpart.

(e)(1) Any action taken by the Board under this section other than dismissal of the appeal is not subject to immediate Administrator review (as described in § 405.1875(a)(3) of this subpart) or judicial review (as described in § 405.1877(a)(3) of this subpart).

(2) A Board action other than dismissal of the appeal may be reviewed solely during the course of Administrator review of one of the Board decisions specified as final, or deemed to be final by the Administrator, under § 405.1875(a)(2) of this subpart, or of judicial review of a final agency decision as described in § 405.1877(a) of this subpart, as applicable.

(f) Ex parte communications with Board staff concerning procedural matters are not prohibited.

(g) Upon receipt of a credible allegation that a party's representative has divulged to that party, or to the Board, information that was obtained during the course of the representative's relationship (such as legal counsel or employee) with an opposing party and that was intended by that party to be kept confidential, the Board—

(1) Investigates the allegation; and

(2) May take remedial action when it determines that it is appropriate to do so, against the party or the representative (such as prohibiting the representative from appearing before it, excluding such information from the record, or if the overall fairness of the hearing has been compromised, dismissing the case).

[73 FR 30260, May 23, 2008; 73 FR 49356, Aug. 21, 2008; 85 FR 59019, Sept. 18, 2020]

Notes of Decisions

Cited in 13 cases (9 in the last 5 years), 2009–2026 · leading case: Baptist Mem'l Hosp.-Golden Triangle v. Sebelius, 566 F.3d 226 (D.C. Cir. 2009).

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Baptist Mem'l Hosp.-Golden Triangle v. Sebelius, 566 F.3d 226 (D.C. Cir. 2009). “” 42 C.F.R. § 405.1868 (b). Another new Board rule states that that “Once an issue is dismissed or withdrawn, the issue may not be appealed in another case.”

St. Vincent's Med. Ctr. v. Burwell, 222 F. Supp. 3d 17 (D.D.C. 2016). · cites it 6× “Citing to 42 C.F.R. § 405.1868 and Board Rule 27.1, 1 the Board explained that “[t]he applicable regulation and rule provide that the Board is to dismiss an appeal if the Provider does not timely file its position paper.”

Univ. of Chicago Med. Ctr. v. Sebelius, 56 F. Supp. 3d 916 (N.D. Ill. 2014). · cites it 2× “If a hospital does not timely file either a preliminary paper or a joint scheduling order, regulations permit the Board to dismiss the hospital’s appeal ( 42 C.F.R. § 405.1868 (b)): If a provider fails to meet a filing deadline or other requirement established by the Board in a…”

Cent. Maine Med. Ctr. v. Burwell, 210 F. Supp. 3d 234 (D. Me. 2016). · cites it 4× “§ 1395oo(e); 42 C.F.R. § 405.1868 (a) (PRRB has the authority to “make rules and establish procedures.”

Mills Peninsula Health Servs. v. Becerra (D.D.C. 2025). · cites it 3× “§ 1395oo(f); 42 C.F.R. §§ 405.1868 (d)(2). If the provider is still dissatisfied at the end of HHS’s administrative process, it may seek judicial review within sixty days of the final decision.”

Merit Health River Region v. Becerra (D.D.C. 2025). · cites it 3× “§ 1395oo(f)(1); see 42 C.F.R. § 405.1868 (d)(2). From there, a provider may seek judicial review.”

Novant Health Presbyterian Hosp. v. Becerra (D.D.C. 2025). · cites it 3× “” 42 C.F.R. § 405.1868 (b), (b)(1). B. Factual and Procedural Background On November 14, 2012, the MAC charged with reviewing Novant Health Presbyterian Hospital’s (“Novant Health’s”) reimbursement request for Fiscal Year 2007 issued a Notice of Program Reimbursement (“NPR”) for…”

Akron Gen. Med. Ctr. v. Alex Azar, II (D.C. Cir. 2021). · cites it 2× “which are necessary or appropriate to carry out the provisions of this section”); 42 C.F.R. § 405.1868 (b) (“If a provider fails to meet a filing deadline or other requirement established by the Board in a rule or order, the Board may .”

Evangelical Cmty. Hosp. v. Becerra (D.D.C. 2022). · cites it 2× “” 42 C.F.R. § 405.1868 (b) (2022). At issue in this case are the Board’s rules regarding the form and substance of a provider’s initial request to initiate the hearing process.”

Atrium Health Carolinas Med. Ctr. v. Becerra (D.D.C. 2025). · cites it 2× “§ 1395oo(e); 42 C.F.R. § 405.1868 (a). Provider appeals must include a “position paper” that “set[s] forth the relevant facts and arguments regarding .”

Baylor All Saints Med. Ctr. v. Becerra (N.D. Tex. 2025). “42 C.F.R. § 405.1868 (b) (“If a provider fails to meet a filing deadline or other requirement established by the Board in a rule or order, the Board may – (1) Dismiss the appeal with prejudice”); see also id.”

Medica Ins. Co. v. Becerra (D.D.C. 2025). “Under both 42 C.F.R. § 405.1868 (a), (b) and § 405.1835(b), the Hearing Officer (in lieu of the Board) was entitled to either dismiss the challenges to the individual claims decisions or take any other remedial action he deemed appropriate.”

Show all 13 citing cases →

— 42 C.F.R. § 405.1868(b) — 1 case

St. Vincent's Med. Ctr. v. Burwell, 222 F. Supp. 3d 17 (D.D.C. 2016). “Citing to 42 C.F.R. § 405.1868 and Board Rule 27.1, 1 the Board explained that “[t]he applicable regulation and rule provide that the Board is to dismiss an appeal if the Provider does not timely file its position paper.”

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