Health Reform WK-EDGE hospital acquired infection reporting and FCA liability
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Wednesday, September 12, 2018

hospital acquired infection reporting and FCA liability

By Bryant Storm, J.D.

Health care providers put themselves at risk of False Claims Act (FC) liability when they "game the system" by deliberately underreporting hospital acquired infection (HAI) rates with the intent to obtain bonuses or avoid penalties, according to a Health Care Compliance Associate webinar—Gaming the System: The relationship between underreporting HAI rates and FCA liability. The webinar, presented by Laura Darden a health care attorney and faculty member at Georgia Baptist College of Nursing, discussed HAI reporting, FCA liability, the relationship between the two, and recommendations to avoid liability.

HAIs. Darden discussed various different kinds of infections and infection rates which may be subject to reporting requirements. Currently, 35 states mandate HAI reporting to the National Healthcare Safety Network (NHSN). However, the 15 non-mandate states may have data use agreements with NHSN. The disparity in reporting requirements leads to differing apparent performance due to disparate compliance with reporting standards. Thus, hospitals that report to NHSN and participate in value based purchasing on a consistent basis may have more reliable data. Darden suggested that there is a downside to improved reporting technology—more metrics and more factors can lead to inconsistency between results and a lack of believability.

VBP. Incentive and punitive performance based payments under the Value-Based Purchasing (VBP) program and the Patient Protection and Affordable Care Act’s (ACA) (P.L. 111-148) Hospital Acquired Condition Reduction program may encourage gaming of HAI reporting. Darden suggested that the complexity of the reporting and the race-to-the-top nature of these programs may encourage some providers to underreport HAIs in order to improve payment rates.

FCA liability. Darden focused on the importance of intent and deliberate underreporting for the purposes of obtaining bonuses or avoiding penalties. Darden explained that the systematic deliberate intention to make HAI numbers look better than they actually are can lead to FCA liability—for example, calling an infection "present on admission" when in fact it was acquired during the hospital stay.

Escobar. Darden discussed implied certification under Universal Health Services, Inc. v U.S. ex rel. Escobar and the focus on the materiality—the significance of the fraud to the government’s payment decision. She explained that, because of this, nearly all FCA cases turn on the forthrightness of reporting. In other words, providers that are forthright about HAI rates have little to worry about. Accordingly, she suggested that if financial incentivizes were uncoupled from reporting requirements, the gaming would go away.

IndustryNews: NewsStory NewsFeed AccessNews AgencyNews HealthCareAcquiredConditionNews InpatientFacilityNews MedicaidNews MedicarePartANews QualityNews ProgramIntegrityNews VBPNews

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