Pressure Injuries: How They Can Lead to Fraud, Waste, and Abuse Penalties
Jeannine LeCompte; Compliance Research Specialist
Pressure injuries are events that many health practitioners in the Skilled Nursing Facility environment regard only as a care issue. However, pressure injuries can—and do—lead to serious charges from the Office of Inspector General (OIG) relating to fraud, waste, and abuse under the False Claims Act (FCA).
This outcome is based on the principle of quality of care, and the fact that poor care is classed as “no care” or fraud in the eyes of the law. In this regard, a facility must ensure that a resident receives care consistent with professional standards of practice to prevent pressure ulcers, unless the individual’s clinical condition demonstrates that they were unavoidable.
Under the FCA, any person who “knowingly” presents, or causes to be presented, a false or fraudulent claim for payment or approval can be liable for a civil penalty of not less than $5,000 and not more than $10,000, plus three times the amount of damages which the Government sustains because of the act of that person. However, the twist in the tale lies in the definition of a “false claim.” The OIG has determined that this does not necessarily have to be deliberate fraud. A facility can also be guilty of a “false claim” if it has not met its obligations to provide a minimum standard of care.
The OIG asserts that it is possible for a healthcare provider to deliver, and bill for, a service under the Medicare or Medicaid program that is so “destitute of value,” and “worthless,” that it incurs liability under the FCA. In a worthless services claim, the performance of the service is so deficient that for all practical purposes it is the equivalent of no performance at all. The failure to prevent and properly treat avoidable pressure injuries qualifies under this “worthless” category.
§483.25(b) of the Public Health Act states that a facility must ensure that a resident receives care which will prevent avoidable pressure ulcers, and will take steps to ensure that injuries which do develop are treated immediately and adequately.
Any failure to provide proof of an immediate evaluation, the implementation of interventions consistent with resident needs, and the monitoring of the impact and progress of the treatment, qualifies as a breach.
Significantly, the courts have found that to find a service “worthless,” it does not have to find that the resident received no services at all, merely that what he or she has received was “inadequate” to prevent the injuries from occurring.
The bottom line is that a pressure injury which can be shown to be the fault, directly or indirectly, of the facility or its staff, will open the facility to liability under the FCA, no matter what other services have been provided.
This sobering fact should be an important part of any compliance program, and staff should be educated in this regard on a regular basis.
