The challenges of maintaining sufficient staff and implementing effective infection control measures has impacted the entire nursing home industry. Compounding the penalties faced by facilities for negative survey findings in this area, the Department of Justice (DOJ) recently sued an Ohio-based nursing home for fraud and alleged, among other things, that it provided substandard care tied to low staffing and poor infection control.

The False Claims Act (“FCA”) has become a potent tool in the DOJ’s fight against fraudulent claims for Medicare and Medicaid reimbursement. Penalties are steep and range from $12-25K per false claim, and are usually tied to allegations that particular claims are false.  However, in the DOJ’s recent FCA action, the DOJ specifically cited the lack of infection control and inadequate staffing as contributing factors, in addition to alleging that the facility failed to correct many known problems. Those allegations were the basis for the DOJ’s position that the care at these facilities was so substandard that the government would not have reimbursed the nursing home for most or all of the claims made during the period in question.

This recent enforcement action makes clear that the DOJ believes nursing home liability under the FCA extends to general indicators of quality that are not limited to deficient care specific to an individual resident.  Although the case has yet to be decided, facilities should be mindful that broad and non-specific failures to protect residents from potential serious harm may expose providers to FCA liability, whether or not actual harm occurred.

The challenges of maintaining sufficient staff and implementing effective infection control measures has impacted the entire nursing home industry. Compounding the penalties faced by facilities for negative survey findings in this area, the Department of Justice (DOJ) recently sued an Ohio-based nursing home for fraud and alleged, among other things, that it provided substandard care tied to low staffing and poor infection control.

The False Claims Act (“FCA”) has become a potent tool in the DOJ’s fight against fraudulent claims for Medicare and Medicaid reimbursement. Penalties are steep and range from $12-25K per false claim, and are usually tied to allegations that particular claims are false.  However, in the DOJ’s recent FCA action, the DOJ specifically cited the lack of infection control and inadequate staffing as contributing factors, in addition to alleging that the facility failed to correct many known problems. Those allegations were the basis for the DOJ’s position that the care at these facilities was so substandard that the government would not have reimbursed the nursing home for most or all of the claims made during the period in question.

This recent enforcement action makes clear that the DOJ believes nursing home liability under the FCA extends to general indicators of quality that are not limited to deficient care specific to an individual resident.  Although the case has yet to be decided, facilities should be mindful that broad and non-specific failures to protect residents from potential serious harm may expose providers to FCA liability, whether or not actual harm occurred.

Column contributed by Stacy Gerber Ward, who is a Shareholder at von Briesen & Roper, s.c., where she also serves as leader of the Government Enforcement and Internal Investigations Section, and Co-Chair of the Health Law Section. Contact information: 414-287-1568 | stacy.gerberward@vonbriesen.com