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From Health Law Daily, March 6, 2017

Contractor properly imposed 2 percent penalty for enrollment using incorrect CCN

By Jeffrey H. Brochin, J.D.

A Louisiana long-term care hospital (LTCH) which accidentally transposed the last two digits of its Medicare Identification Number (CCN) when it enrolled in the CDC’s National Safety Health Network (NHSN) system, was properly penalized with a 2 percent reduction to its fiscal year (FY) 2015 federal Medicare rate, the Provider Reimbursement Review Board (PRRB) has ruled. The LTCH (provider) was deemed to have missed all four quarterly NHSN catheter-related infection reporting deadlines for CY 2013, and the responsibility was on the provider to correctly enter its own CCN when entering data (Cornerstone Hospital West Monroe (West Monroe, La) v. Novitas Solutions, Inc., PRRB Hearing, Dec. No. 2017-D3, Case No. 15-1819, January 26, 2017).

Background. In June 2014, CMS determined that the provider had failed to meet the requirements of the LTCH Quality Reporting Program (LTCH QRP) for FY 2015. A 2 percent reduction in the FY 2015 annual payment update was imposed on the Provider because it did not submit data for two of the three quality measures for the four quarters of calendar year (CY) 2013. The provider requested that CMS reconsider the decision regarding the reduction to its FY 2015 Medicare payments, citing a data entry error, and on September 22, 2014, CMS upheld its reduction decision and denied the provider’s request for reconsideration. On March 13, 2015, the provider timely appealed CMS’ denial to the PRRB which held a live hearing on February 4, 2016, resulting in a decision affirming CMS’s determination.

NHSN infection reporting. As delineated in the Final rule published on August 18, 2011, CMS required that LTCH providers submit data regarding catheter-associated urinary tract infections (CAUTI) and central line catheter-associated bloodstream infections (CLABSI) to the CDC’s NHSN system for all four quarters of CY 2013. CMS determined that the Provider missed the deadlines for submission of CY 2013 CAUTI and CLABSI data for the first, second, third and fourth quarters. The omissions resulted in a 2 percent reduction in the Medicare payment update for FY 2015.

Accidentally transposed CCN. The provider explained that its Director of Quality Management accidentally transposed the last two digits of its CCN while enrolling in the CDC’s NHSN system. As a result, all the data that was submitted for all four quarters of CY 2013 was submitted in error under the CCN "192013" rather than the correct CNN of "192031." The Provider did not become aware of the problem until it received the June 27, 2014, determination letter from CMS, and by that time it was too late to resubmit the CY 2013 data using the correct CCN.

Claim of faulty data collection system. Notwithstanding its data entry mistake, the provider maintained that the overall fault was with CMS because: (1) the NHSN data collection system accepted, confirmed submission, and posted the data that the Provider submitted for CY 2013 on its website over the course of a year without alerting the Provider that its CCN number was wrong; and (2) NHSN itself never actually transmitted this data to CMS. The Provider argued that a properly functioning reporting system would have either refused to process the data submission outright based on the transposition, or would have recognized the transposition and credited the Provider for the submission. They requested that the PRRB reverse the payment penalty of over $280,000 claiming that CMS abused its discretion and imposed the penalty for data processing and communication errors that were clearly under the control of CMS or its contractors, and that the large financial penalty was not justified given the facts.

Limited PRRB authority. The provider noted that the PRRB had the authority to review and reverse CMS’ decision not to grant equitable relief under 42 U.S.C. § 1395oo and 42 CFR Sec. 405.1869(b)(l)(i), the latter of which states that the PRRB is authorized to affirm, modify, or reverse the intermediary’s or CMS’ findings on each specific matter at issue in the intermediary or CMS determination under appeal. However, the PRRB held that they found no statutory or regulatory authority which compelled them to reverse CMS’ decision not to grant the Provider with equitable relief, and they further referenced the LTCH QRP Manual which clearly stated that the provider must correctly enter its own CCNwhen reporting data on CAUTI and CLABSI measures under the LTCH QRP.

Conclusions of the PRRB. Based on the above, the PRRB found that CMS duly notified LTCHs that they must confirm that their CCN was correctly entered into the NHSN system in order to enroll in the system, and also to correctly report CAUTI and CLABSI data, in order to ensure CMS received that data. Accordingly, they concluded that the Provider failed to timely report the CAUTI and CLABSI data for the first, second, third and fourth quarters of CY 2013 and, thereby, failed to comply with the requirement to submit data in the form, manner and time specified by CMS. As a result, the Provider failed to satisfy the LTCH QRP requirements that were necessary to receive a full annual payment update for FY 2015, and the imposition of a 2 percent penalty reduction to the update rate was upheld.

Concurring opinion: mitigating factors. In a concurring opinion, two PRRB members noted that two issues made it a close question. A mitigating factor was the fact that CMS contracted with CDC to use its NSHN system to gather the data; the system clearly did not have adequate software to prevent the kind of error that was made in this case; the fact that a witness provided uncontroverted testimony that once she enrolled in the NHSN system using the transposed CCN, the CCN itself was displayed only in the profile section of the website which made the error not easily discoverable by the user. The NHSN system was not equipped to prevent this error until several years after this issue arose.

In addition, the data gathering effort seemed to lull the user into complacency once the data was submitted to NHSN. For example, after the provider’s employee had timely submitted the data, she returned to the site and checked that the data was there for her to see. Obviously, it was her understanding that the data had been submitted when it was displayed on the NHSN website. It was not apparent to her that CDC had yet to actually submit the data to CMS. While CMS, in its Manual, did, indeed, tell the user that the CCN was necessary to submit the data to CMS, it did not tell the user that the data was simply displayed on the NSHN website and that it took another step for the data to actually be transmitted to CMS—and it was this step that actually correlated the data with the CMS’s Provider identifier, the CCN. Most importantly, and not easily understood by the user, was that it was this second step which actually submitted the data to CMS. This duplicity, despite numerous publicized CMS warnings, created an unnecessary and regulatory trap for an unwary provider. As a result, the concurring members rejected the Medicare Contractor’s assertion that the provider was negligent in the submission of the data when these software issues equally contributed to the error that was made.

Cost reporting period ending Fiscal Year 2015.

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