Burden on submitter of quality data to verify successful transmittal

When a provider is required to submit data to CMS by entering data into a system that verifies the data and then transmits it to CMS, it is the provider’s duty to ensure that the data is actually transmitted to CMS. The Provider Reimbursement Review Board (PRRB) held that it is not enough to simply input information into the system when there are mechanisms in place to confirm that the data was successfully transmitted to CMS (Horizon Home Care & Hospice v. National Government Services, PRRB Hearing, Dec. No. 2018-D30, Case No. 16-0143, March 29, 2018).

Background

A hospice provider submitted admission and discharge data files to CMS via the Quality Improvement Evaluation System (QIES) as required under the Social Security Act (the Act). After submitting the information, the system provided a message indicating that the submission file was being processed for errors and a Final Validation Report would be available in the CASPER Reporting application once the data was transmitted to CMS. The hospice provider assumed that the submission was accepted and never accessed the CASPER Reporting application to obtain a copy of the Final Validation report.

The Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) ties submission of certain mandatory quality data to a provider’s eligibility for the annual Medicare hospice benefit increase or market basket update. It also mandates that a hospice’s market basket update be reduced by 2 percent if it failed to report the required quality data. Per this mandate, the Medicare contractor notified the hospice provider that its Annual Payment Update was being reduced by 2 percent.

After checking the CASPER system, the hospice provider discovered that the final validation report indicated that the data contained a facility identifier error and was never transmitted to CMS. The hospice provider requested that CMS reconsider its decision. CMS upheld its payment reduction and the hospice provider appealed the reconsideration decision to the Board.

QRP rule

The hospice provider argues that the plain language of the Quality Reporting Program (QRP) Rule requires that a hospice provider submit the data to CMS but does not require that the CASPER system receive the data from QIES. The Medicare contractor argues that the rule clearly states that the quality “data must be submitted in a form and manner, and at a time, as specified by the Secretary.” The Medicare contractor further argues that it is the provider’s duty to submit the data accurately, completely and timely.

The QIES system notified the hospice provider that it should obtain a validation report from the CASPER system. The Hospice Item Set manual and submission user’s guide both warn that if fatal errors are found, the record will be rejected and a validation report should be run to ensure the data was successfully transmitted. In the 2014 Guidance Manual, CMS warns that the system will provide fatal error and/or warning messages on the Final Validation Report for submitted data that does not meet the requirements.

Decision

The PRRB held that the provider is not required to review and printout its final validation report, however it is in the provider’s best interest to run the validation reports to confirm that the data was input correctly and transmitted from QIES to CASPER. The hospice provider did not perform the recommended steps prior to the submission deadline to assure that the quality data it entered into QIES was error free and transferred to CASPER. Therefore, the hospice provider did not submit the quality data in the form and manner and at the time required by the Act.

HHS developing new system to speed PRRB, other appeal processes

HHS and its subagencies continue to struggle with eliminating the backlog of appeals that has led to delays in payments to providers and litigation trying to get HHS to meet statutory requirements for hearing appeals. The two main appeals backlogs relate to Provider Reimbursement Review Board (PRRB) decisions (appeals by providers of final determinations by Medicare contractors) and individual appeals for Medicare coverage, payment, and premiums brought before the Office of Medicare Hearings and Appeals (OMHA).

PRRB

CMS is developing a system to electronically track and file PRRB and Medicare Geographic Classification Review Board (MGCRB) decisions, according to CMS officials speaking at a conference sponsored by the American Health Lawyers Association at the end of March. The current appeals process relies heavily on a manual, snail mail process that has added to the time it takes for parties to file all papers in preparation for a hearing. The “Office of Hearings Case and Document Management System (OH CDMS)” should be ready for use by the end of 2017. The OH CDMS will be accessible through the CMS Enterprise portal.

Using the new system, parties may:

  • file appeal requests
  • upload position papers, jurisdictional documents, and other supporting documentation
  • view documents issued by Board or filed by opposing party
  • manage issues raised in individual appeals and providers participating in groups
  • request other actions such as change in representative, expedited judicial review, mediation, etc., and
  • monitor case status

This new system also will be used by CMS Hearing Officers who hear appeals not covered by other CMS or HHS appeal avenues, such as:

  • Risk Adjustment Data Validation (RADV)
  • Medicare Advantage/Prescription Drug Plan (MA/PD)
  • Medicaid State Plan Amendments
  • Retire Drug Subsidy Determinations (RDS)
  • Organ Procurement Organizations (OPO)

The need for a more efficient way of handling all the filings related to an appeal was underscored by a presentation by Sue Anderson, PRRB chairperson. She noted that the PRRB currently has more than 10,000 cases on its docket. In fiscal year 2016, the PRRB issued 27 decisions that closed 66 cases; 147 expedited judicial determinations; and 497 jurisdictional determinations, so it has a long way to go to work through its backlog.

OMHA appeals

Issues with PRRB appeals aren’t even the most serious ones facing HHS. The Office of Medicare Hearings and Appeals (OMHA) has a backlog of hundreds of thousands of administrative appeals, and the American Hospital Association is engaged in long-standing litigation with HHS trying to force HHS to hold Administrative Law Judge appeals within 90 days. Currently, these appeals take 10 times longer, and the backlog grows every year. A recent filing by HHS in the litigation shows the seriousness of the issue: as of March 5, 2017, there were 667,326 pending appeals; HHS projects the number of pending appeals to grow to 1,009,768 by the end of FY 2021 (September 30, 2021).

OMHA is looking at a number of ways to deal with the backlog; (see OMHA trying to speed claims appeals process, April 18, 2017). One solution is legislation. Speaking at the Health Care Compliance Association (HCCA) Compliance Institute at the end of March, Kimberly Brandt, Chief Oversight Counsel for the U.S. Senate Committee on Finance, noted that the Senate is considering re-introducing the “Audit & Appeal Fairness, Integrity, and Reforms in Medicare Act.” The bill “seeks to increase coordination and oversight of government audit contractors while implementing new strategies to address growing number of audit determination appeals that delay taxpayer dollars from reaching the correct source,” according to Brandt. The bill also would encourage the use of voluntary alternate dispute resolution process to allow for multiple pending claims with similar issues of law or fact to be settled as a unit, rather than as individual appeals.