Hospital Acquired Infections Reporting Requirements and False Claims Act Liability: Improving Reporting Standards to Better Serve All Parties

Abstract

Hospital-acquired infections are infections sustained as a result of hospitalization. Nationwide, these account for many injuries and deaths each year. In an attempt to lower hospital-acquired infection (HAI) rates, the federal government has implemented a system of rewards and penalties for participating hospitals who report hospital-acquired infection rates. This system involves ranking hospitals according to reported HAI rates, and tracks improvement in rates each year. Using both rank and improvement data, the Centers for Medicare and Medicaid Services (CMS) simultaneously rewards hospitals under its Value-Based Purchasing Program, and penalizes hospitals under its Hospital Acquired Conditions Reduction Program. Hospitals ranking in higher quartiles and hospitals demonstrating improved HAI rates (i.e., lower HAI rates) can receive bonuses. Ironically, many prominent academic medical centers have been on the receiving end of penalties because they fall in the bottom quartile rank for HAI rates.

With the current system of rewards and penalties, some hospitals may be tempted to underreport infection rates. This puts hospitals at risk for False Claims Act liability. The following article looks at tracking hospital acquired infection (hereafter “HAI”) rates to improve hospital quality and safety. It examines the current system of rewards and penalties for reported HAIs. It looks at the perception of federal agencies such as the Office of Inspector General, the CMS, and the Centers for Disease Control on the validity of reported HAI rates. It then describes the False Claims Act, focusing on implied certification and materiality, using applicable case law as context, including the seminal FCA case, Escobar. Finally, it urges a serious consideration of connecting Conditions of Participation to compliance with HAI reporting requirements.