OIG Reports Examine Trends in Nursing Home Fall Incidents and Underreporting

Two newly released companion reports from the U.S. Department of Health and Human Services Office of Inspector General (“OIG”) discuss the prevalence of serious falls among Medicare-enrolled nursing home residents as well as inaccurate reporting of falls. The implications of the two carry significant legal, regulatory, and operational consequences for nursing homeowners and operators.

The Scope of the Problem: Serious Falls and Their Consequences

The first report, Serious Falls Resulting in Hospitalization Among Medicare-Enrolled Nursing Home Residents, July 2022–June 2023 (“OEI-05-24-00181”), found that over a one-year period, 42,864 serious falls occurred among Medicare-enrolled nursing home residents, resulting in hospitalization. Of these, 1,911 residents died while hospitalized, and Medicare and enrollees paid over $800 million for the resulting care.

The report notes that the vast majority of affected residents had documented fall risk factors prior to their injuries, including balance problems, use of psychotropic medications, and prior falls. Additionally, 78% of residents who fell were functionally impaired, and 63% were cognitively impaired, highlighting the vulnerability of this population.

The report also found that fall rates were significantly higher among:

• Female residents
• Older residents
• Short-stay residents (with rates three times higher than long-stay residents)
• Residents in for-profit facilities, those with lower nurse staffing levels, and those with lower Centers for Medicare & Medicaid Services (“CMS”) star ratings.

The Reporting Gap: 43% of Serious Falls Not Documented

The companion report, Nursing Homes Failed to Report 43 Percent of Falls with Major Injury and Hospitalization Among Their Medicare-Enrolled Residents (“OEI-05-24-00180”), reveals that 43% of serious falls were not reported in the federally mandated Minimum Data Set (“MDS”) assessments, which affects the accuracy of CMS’s Care Compare website that consumers use to assess nursing home quality.

Key findings include:

• For-profit and chain-affiliated nursing homes had the highest rates of nonreporting, though for-profit and chain-affiliated nursing homes are, by far, the largest segment of the nursing home market and thus skew the data.
• Larger facilities and those in non-rural areas were more likely to underreport.
• Falls were more frequently unreported for younger residents, male residents, short-stay residents, and those with Medicare-only coverage.

Notably, nursing homes with the lowest reported fall rates on Care Compare were the least likely to report actual falls, and the report insinuates that low scores may reflect data manipulation rather than superior care.¹

CMS’s Response and Future Direction

In response to OIG’s recommendations in the report, CMS is:

• Launching a new MDS validation program to audit nursing home records.
• Exploring integration of claims and encounter data into fall-related quality measures.
• Planning to tie bonus payments to fall rates beginning in 2027, under the Skilled Nursing Facilities (“SNF”) Value-Based Purchasing Program.

These changes signal a shift toward multi-source verification of quality metrics and a more robust enforcement framework.

Legal and Regulatory Implications

The findings raise serious concerns about compliance with federal reporting requirements under 42 C.F.R. § 483.20 and the accuracy of data used in CMS’s Five-Star Quality Rating System that, given the implications outlined below, deserve attention from providers to ensure that their practices regarding fall prevention, intervention, and reporting are robust. Specifically, facilities that knowingly or willfully submit false MDS data may face:

• Civil monetary penalties. Under federal law, knowingly and willfully making or causing false statements in MDS data can result in felony charges, with penalties including fines of up to $100,000 and imprisonment for up to 10 years. 42 U.S.C. § 1320a-7b. Additionally, individuals who certify or cause the certification of materially false statements in MDS assessments may face civil monetary penalties of up to $1,000 or $5,000 per assessment, depending on the nature of the violation. 42 C.F.R. § 483.20.
• Exclusion from federal programs. Facilities that engage in fraudulent or abusive practices — such as knowingly submitting false MDS data — may be subject to exclusion from participation in Medicare and Medicaid under 42 U.S.C. § 1320a-7(b)(7).
• Referrals to the OIG for investigation. CMS and state survey agencies conduct annual inspections of nursing homes. Inaccurate MDS reporting can result in survey deficiencies. Surveyors are empowered to make referrals to OIG for investigation if they identify a pattern of willfully and knowingly submitting inaccurate or false information.
• Potential False Claims Act (“FCA”) liability. The FCA (31 U.S.C. §§ 3729–3733) imposes liability on entities that knowingly submit false claims to the government. If a nursing home submits inaccurate MDS data that affects reimbursement from federal payment programs, it may be exposed to FCA liability.

Moreover, inaccurate fall data may expose facilities to litigation risk, especially in cases involving injury or death where plaintiffs can demonstrate a pattern of underreporting or inadequate fall prevention.

With CMS poised to implement stricter oversight and financial incentives tied to fall rates, facilities should revisit their policies and procedures for fall prevention and intervention measures and emphasize adherence to the policies and procedures through staff training as a means of reducing the likelihood of serious falls, and ensure strict compliance with reporting requirements for those falls that do occur. Additionally, nursing homes should consider comparing their MDS assessments with hospital claims to identify discrepancies, ensuring their staff members understand fall reporting requirements and risks of noncompliance, and regularly reviewing their Care Compare data and star ratings to ensure that they accurately reflect facility performance. For more information on the OIG reports or other issues addressed herein, please contact AGG Healthcare attorneys Jennifer Hilliard or Lisa Churvis.

[1] These findings generally parallel observations in the home health context, as presented in OIG’s September 2023 report Home Health Agencies Failed to Report Over Half of Falls with Major Injury and Hospitalization Among Their Medicare Patients (OEI-05-22-00290). OIG found that 55% of falls it identified in Medicare claims were not reported in associated OASIS assessments as required. Falls reporting on OASIS assessments was worse among younger home health patients and from for-profit home health agencies (“HHAs”). Also similar to nursing homes, OIG observed that HHAs with the lowest Care Compare major injury fall rates reported falls less often than HHAs with higher Care Compare fall rates, indicating that Care Compare does not provide the public with accurate information about how often home health patients fell.