Over the previous yr, the federal authorities has taken concrete steps to meet its promise of a heightened dedication to investigating and imposing well being care fraud inside the Medicare Benefit program (Medicare Half C). Well being care suppliers that contract with Medicare Benefit Organizations (“MAOs”) and supply care to Medicare Benefit beneficiaries ought to take observe, as they aren’t resistant to the federal government’s enforcement efforts. Throughout two speeches in 2020, the Division of Justice (“DOJ”) recognized Medicare Half C as a program of accelerating focus and an necessary precedence for False Claims Act (“FCA”) investigations and litigation. There are a rising variety of latest choices by DOJ to intervene in FCA circumstances alleging Medicare Benefit fraud, and a rising variety of circumstances pulling well being care suppliers into the fray. Seeking to these settled or intervened FCA circumstances, some frequent themes come up of which suppliers must be conscious to mitigate potential FCA legal responsibility.
Combatting Medicare Benefit Fraud Is An “Necessary Precedence”
In 2020, the Medicare Benefit program offered well being care protection for 25 million Individuals (accounting for 40% of all Medicare beneficiaries) leading to a complete annual price of $314 billion, based on a latest report issued by the Workplace of Inspector Common for the Division of Well being and Human Companies (“OIG”). The numerous and rising price of the Medicare Benefit program has led the DOJ to establish it as an “necessary precedence,” as mirrored in Deputy Assistant Legal professional Common Michael Granston’s feedback in December 2020.
Medicare Benefit Theories of Legal responsibility
The Facilities for Medicare & Medicaid Companies (“CMS”) pays MAOs capitated per-member funds which are adjusted for danger components reported by provider-supplied diagnoses codes. Diagnoses with larger severity and remedy prices end in larger future capitated funds to MAOs and improve the general prices to the Medicare Program. This risk-adjustment reimbursement course of is integral to FCA circumstances asserting Medicare Benefit fraud.
In these FCA issues involving well being care suppliers, the federal government alleges that the supplier knowingly submitted false, inaccurate, or unsupported diagnoses codes to an MAO and induced the MAO to submit such info to CMS, thereby growing its risk-adjusted capitation funds. If a supplier receives inflated capitated funds from the MAO on account of the supplier’s inaccurate submission of diagnoses codes, the federal government could search to determine FCA legal responsibility for knowingly retaining overpayments. Extra just lately, the federal government is pursuing FCA legal responsibility in opposition to a gaggle of suppliers primarily based on the speculation that care rendered in violation of Medicare necessities induced issues for Medicare Benefit sufferers that resulted in extra analysis codes, elevated danger scores, and inflated capitation funds.
Latest Medicare Benefit Case Developments
Latest case developments illustrate these frequent theories of legal responsibility asserted in FCA circumstances alleging Medicare Half C fraud.
On July 29, 2021, america intervened in and consolidated six FCA actions filed in opposition to Kaiser Basis Well being Plan, Inc. and a number of other of its affiliated suppliers for purportedly upcoding diagnoses and submitting inflated danger adjustment info to CMS for Medicare Benefit beneficiaries. Allegations concentrate on pressuring physicians to create medical document addenda after affected person encounters, purportedly months to a yr later, so as to add diagnoses associated to risk-adjustment. The diagnoses allegedly had been unsupported by the affected person’s medical situation or weren’t addressed in the course of the affected person’s encounter. The circumstances stay pending within the Northern District of California. See United States ex rel. Osinek v. Kaiser Permanente, No. 3:13-cv-03891 (N.D. Cal.).
On August 30, 2021, Sutter Well being and a number of other of its supplier associates agreed to pay $90 million to settle an intervened FCA case alleging the understanding submission of danger adjustment info primarily based on analysis codes that weren’t supported by affected person medical data to MAOs for beneficiaries underneath Sutter Well being’s care. The analysis codes submitted allegedly resulted in larger funds constituted of CMS to the MAOs and, in flip, to Sutter Well being, given the capitation and gainsharing agreements between Sutter Well being and MAOs. Allegations centered on a number of campaigns by Sutter Well being designed to enhance Medicare Benefit sufferers’ danger scores, equivalent to monitoring danger adjustment information, educating and coaching physicians on analysis coding, scheduling annual affected person wellness exams to seize analysis codes, and working digital medical document queries relating to analysis codes. Sutter Well being additionally purportedly ignored audits reflecting unsupported analysis codes and did not repay recognized overpayments. Sutter Well being entered right into a Company Integrity Settlement as a part of the settlement. See United States ex rel. Ormsby v. Sutter Well being et al., No. 15-CV-01062-JD (N.D. Cal.).
On September 3, 2021, america intervened in a FCA motion introduced in opposition to the College of Pittsburgh Medical Heart (“UPMC”), its multi-specialty doctor observe group, and an employed surgeon alleging the submission of false claims for (i) overlapping/concurrent surgical procedures carried out in violation of necessities that instructing physicians be instantly obtainable all through, and current throughout important parts, of the process and (ii) medically pointless anesthesia billings on account of pointless delays in surgical procedures that artificially lengthened surgical time. The federal government alleges that the non-compliant surgical procedures induced issues, prolonged hospital stays, or complicated follow-up procedures. For Medicare Benefit sufferers, the federal government additional asserts such outcomes resulted in extra diagnoses codes, which elevated danger scores and, thus, capitation funds made to MAOs and the UPMC. In essence, the federal government seems to be making an attempt to determine FCA legal responsibility by threading collectively allegedly-poor Medicare Benefit affected person outcomes related to noncompliant surgical procedures and defendants’ purported information of the elevated danger of affected person hurt ensuing from the surgical procedures with the receipt of inflated capitation funds. This case stays pending within the Western District of Pennsylvania. See United States ex rel. D’Cunha v. Luketich et al., No. 2:19-cv-00495-CB (W.D. Pa.).
On September 14, 2021, america intervened in an FCA motion introduced in opposition to Impartial Well being Affiliation (an MAO), and its subsidiary that gives chart assessment providers, alleging inaccurate submission of analysis codes to CMS that elevated plan reimbursement. Whereas no well being care suppliers are named as defendants, the federal government’s allegations are nonetheless instructive. The federal government focuses on alleged retrospective chart critiques designed to seize affected person situations missed by treating suppliers or coders that remained unsupported by medical data in addition to processes for suppliers to retroactively add unsupported diagnoses to medical document addenda, to be able to submit new danger adjustment information to CMS. The case stays pending within the Western District of New York. See United States ex rel. Ross v. Impartial Well being Affiliation et al., No. 12-CV-0299(S) (W.D.N.Y.).
Whereas unrelated to pending FCA litigation, on September 21, 2021, OIG launched a research figuring out considerations that 20 totally different MAOs could have inappropriately used chart critiques and well being danger assessments to drive a disproportionate share of funds (amounting to $5 billion) from diagnoses reported by these critiques and never linked to different service data. Whereas the research addresses the function of MAOs in submitting inaccurate information to CMS, the federal government’s concentrate on risk-adjustment information being supported by underlying medical data is instructive to suppliers as nicely.
Key Takeaways for Well being Care Suppliers
- As is the case with different federal well being care applications, diligent documentation practices are important when offering take care of Medicare Benefit beneficiaries. Have processes in place to make sure that medical data help claims and risk-adjustment information, like diagnoses codes, which are submitted to MAOs.
- Inside and exterior audits that flag potential inconsistencies with submitted claims and diagnoses codes shouldn’t be ignored. Such audit findings could sign the potential receipt of overpayments if MAOs go risk-adjusted funds alongside to suppliers. Inaction can result in the alleged retention of overpayments in violation of the FCA.
- Given the federal government’s said, and demonstrated, concentrate on investigating and imposing Medicare Benefit fraud, it’s prudent to include this program into routine compliance actions, equivalent to coaching, medical document critiques, and claims audits. Coaching, nevertheless, ought to concentrate on compliant documentation and coding practices and be fastidiously crafted to make sure that suppliers and coders should not swayed to up-code diagnoses codes, for instance.