Annals of Health Law
READY OR NOT
explicit reference to quality issues involving substandard or even worthless
services, 88 false claims in connection with P4R and P4P did not fly under
the OIG radar. In fact, for the first time the OIG announced in its annual
plan that the agency will investigate the “reliability of Hospital-Reported
Quality Measure Data.” 89 OIG plans to “review hospitals’ controls for
ensuring the accuracy and validity of data related to quality of care that they
submit to CMS for Medicare reimbursement.” 90 So, CMS has announced
the priority status of data integrity in VBP programs as well as their
commitment to conduct audits and investigations to validate data
In the VBP context, quality data submitted to CMS amounts to an
entirely new set of legal representations (separate and distinct from billing
claims submissions) upon which false claims under the FCA could be
based. VBP program participants will be held accountable for the integrity
of this data which is increasingly subject to government oversight.
Ultimately, the False Claims Act is the most powerful tool in the OIG
arsenal to prosecute quality fraud. 91 Recalling CMS’ three-pronged Quality
Improvement Strategy, 92 VBP programs are well-positioned to have a
significant impact on the first two prongs, including incentivizing quality
through payment reforms and driving quality of care through public
reporting; and, as discussed in this section, the FCA will fuel the
enforcement element and third prong of CMS’ vision to improve healthcare
in the US.
III. GOVERNMENT STRATEGY TO IDENTIFY QUALITY DATA FRAUD
Hospitals are sharing infinitely more information as they take a big step
beyond Medicare quality reporting and adjust to the reimbursement
methodology linking payment to patient outcomes and satisfaction. 93 CMS,
88. The 2012 Work Plan states that the “OIG also examines quality-of-care issues in
nursing facilities, institutions, community-based settings, and other care settings and
instances in which the programs may have been billed for medically unnecessary services,
for services either not rendered or not rendered as prescribed, or for substandard care that is
so deficient that it constitutes “worthless services.” (emphasis added). See id. at Part IV- 4.
89. See id. at Part I-IV.
90. See id.
91. See, e.g., Robert T. Rhoad, et al., A Gathering Storm: The New False Claims Act
Amendments and Their Impact on Healthcare Fraud Enforcement, 21 THE HEALTH LAWYER
14, 14 (2009), available at http://www.crowell.com/documents/New-False-Claims-Act-Amendments-And-Their-Impact-On-Health-Care-Fraud-Enforcement.pdf; Dave Nadler,
President Signs Fraud Enforcement and Recovery Act of 2009, PROFESSIONAL SERVICES
COUNCIL, Sept. 2009 at 30-32; see supra Anderson, note 38.
92. See An Introduction to Value-Driven Reform, infra Section I; see Anderson &
Nedza, supra note 8.