Over the past year, the federal government has taken concrete steps to deliver on its promise of an increased commitment to investigate and enforce health care fraud under the Medicare Advantage (Medicare Part C) program. . Health care providers who contract with Medicare Advantage (“MAO”) organizations and provide care to Medicare Advantage beneficiaries should take note, as they are not immune to government enforcement efforts. . Through two speeches in 2020, the Department of Justice (“DOJ”) identified Medicare Part C as a program of increasing attention and an important priority for investigations and litigation under the False Claims Act (“FCA “). There are a growing number of recent Justice Department decisions to intervene in FCA cases alleging Medicare Advantage fraud, and a growing number of cases involving healthcare providers in the fray. Looking at these FCA cases settled or completed, some common themes arise that vendors should be aware of to mitigate FCA’s potential liability.
Fighting Medicare Advantage Fraud A ‘High Priority’
In 2020, the Medicare Advantage program provided health care coverage to 25 million Americans (representing 40% of all Medicare beneficiaries), resulting in a total annual cost of $ 314 billion, according to a recent report published by the Office of the Inspector General of the department. of health and social services (âOIGâ). The large and growing cost of the Medicare Advantage program led the Justice Department to identify it as an “important priority,” as evidenced by comments from Assistant Deputy Attorney General Michael Granston in December 2020.
Medicare Advantage Theories of Liability
The Centers for Medicare & Medicaid Services (“CMS”) makes per member per capita payments to MAOs that are adjusted for risk factors reported through diagnostic codes provided by the provider. Diagnoses with greater severity and treatment costs result in higher future payments to MAOs and increase overall Medicare program costs. This risk adjustment reimbursement process is an integral part of FCA cases claiming Medicare Advantage fraud.
In these FCA cases involving healthcare providers, the government alleges that the provider knowingly submitted false, inaccurate or unsupported diagnostic codes to a MAO and caused the MAO to submit this information to CMS, thus increasing its risk-adjusted capitation payments. If a provider receives inflated capitation payments from MAO due to the provider’s incorrect submission of diagnostic codes, the government may seek to establish FCA liability for knowingly withholding overpayments. More recently, the government is suing the FCA against a group of providers on the basis of the theory that care provided in violation of Medicare requirements has caused complications for Medicare Advantage patients, resulting in codes of default. additional diagnostics, increased risk scores and inflated capitation payments.
Recent Medicare Advantage Case Developments
Recent business developments illustrate these common theories of liability raised in FCA cases alleging Medicare Part C fraud.
On July 29, 2021, the United States intervened and consolidated six FCA actions filed against Kaiser Foundation Health Plan, Inc. and several of its affiliated vendors for allegedly increasing diagnostic coding and submitting information to CMS. inflated risk adjustment for Medicare Advantage beneficiaries. The allegations focus on pressure on doctors to create addenda to medical records after meetings with patients, allegedly months to a year later, to add diagnoses related to risk adjustment. The diagnoses were allegedly not supported by the patient’s medical condition or were not addressed during the patient encounter. The cases remain pending in the Northern District of California. See United States ex rel. Osinek v. Kaiser Permanente, No.3: 13-cv-03891 (ND Cal.).
On August 30, 2021, Sutter Health and several of its affiliated vendors agreed to pay $ 90 million to settle an FCA intervention case alleging the knowing submission of code-based risk adjustment information. diagnoses that were not supported by patient medical records at OAMs for recipients under Sutter Health care. The submitted diagnostic codes would have resulted in higher payments from CMS to MAOs and, in turn, to Sutter Health, given the capitation and earnings-sharing agreements between Sutter Health and MAOs. The claims focused on several Sutter Health campaigns designed to improve Medicare Advantage patient risk scores, such as tracking risk adjustment data, educating and training physicians on diagnostic coding, scheduling annual patient wellness exams to capture diagnostic codes and performing electronic medical records queries regarding diagnostic codes. Sutter Health also reportedly ignored audits reflecting unsupported diagnostic codes and failed to reimburse identified overpayments. Sutter Health entered into a corporate integrity agreement as part of the settlement. See United States ex rel. Ormsby v. Sutter Health et al., No. 15-CV-01062-JD (ND Cal.).
On September 3, 2021, the United States intervened in an FCA action brought against the University of Pittsburgh Medical Center (“UPMC”), its multi-specialty medical practice group and an employee surgeon alleging the submission of false claims for (i) overlapping / competing surgeries performed in violation of the requirements that teaching physicians must be immediately available throughout the procedure and present during critical parts of the procedure and (ii) bills of medically unnecessary anesthesia due to unnecessary delays in surgeries which artificially lengthened the duration of the surgery. The government alleges that the improper surgical procedures resulted in complications, long hospital stays or complex follow-up procedures. For Medicare Advantage patients, the government further claims that these findings resulted in additional diagnostic codes, which increased risk scores and, consequently, capitation payments to MAOs and UPMC. In essence, the government appears to be trying to establish the accountability of the FCA by associating the allegedly poor Medicare Advantage patient outcomes associated with non-compliant surgeries and the defendants’ alleged knowledge of the increased risk of patient harm resulting from the surgeries with the receipt of inflated capitation payments. . This case remains pending in the Western District of Pennsylvania. See United States ex rel. D’Cunha v. Luketich et al., n Â° 2: 19-cv-00495-CB (WD Pa.).
On September 14, 2021, the United States intervened in an FCA action brought against the Independent Health Association (a MAO) and its affiliate which provides file review services, alleging the inaccurate submission of diagnostic codes to CMS which increased the reimbursement of the plan. Although no health care provider is named as the defendant, the government’s claims are nonetheless instructive. The government is focusing on so-called retrospective chart reviews designed to capture patient conditions missed by providers or coders that were not supported by medical records, as well as processes for providers to add retroactively from unsubstantiated diagnoses to addenda to medical records, in order to submit new risk adjustment data to CMS. The case remains pending in the Western District of New York. See United States ex rel. Ross v. Independent Health Association et al., No. 12-CV-0299 (S) (WDNY).
While unrelated to the ongoing FCA litigation, on September 21, 2021, the OIG released a study identifying concerns that 20 different MAOs may have inappropriately used file reviews and risk assessments. for health to generate a disproportionate share of payments (equivalent to $ 5 billion) from diagnoses reported by these notices and not linked to other service records. While the study discusses the role of MAOs in submitting inaccurate data to CMS, the government’s focus on risk adjustment data supported by the underlying medical records is also instructive for providers.
Key takeaways for healthcare providers
As is the case with other federal health care programs, diligent documentation practices are essential when providing care to Medicare Advantage beneficiaries. Establish processes to ensure medical records support claims and risk adjustment data, such as diagnostic codes, that are submitted to AAMs.
Internal and external audits that point out potential inconsistencies with submitted complaints and diagnostic trouble codes should not be ignored. Such audit findings can signal the potential receipt of overpayments if MAOs pass risk-adjusted payments to providers. Failure to act may result in the alleged withholding of overpayments in violation of the CFL.
Given the emphasis the government has placed and demonstrated on the investigation and enforcement of Medicare Advantage fraud, it is prudent to incorporate this program into routine compliance activities, such as training, file reviews. medical and claims audits. Training, however, should focus on compliant coding documentation and practices and be carefully designed to ensure that vendors and coders are not pressured into coding diagnostic trouble codes, for example.
Â© Polsinelli PC, Polsinelli LLP in CaliforniaRevue nationale de droit, volume XI, number 270