On May 1st the U.S. Department of Justice (DOJ) filed a False Claims Act (FCA) complaint alleging Medicare Advantage fraud against UnitedHealthcare’s parent company, UnitedHealth Group, Inc. (UHG). The complaint alleges that UHG obtained inflated risk adjustment payments based on untruthful and inaccurate information about the health status of beneficiaries enrolled in UHG’s Medicare Advantage Plan. That complaint comes shortly after the government decided in February to intervene in a whistleblower suit first brought by James Swoben in 2009 related to that same issue.
By way of background, Swoben claims that UHG’s Medicare Advantage Plans retrospectively looked at patients’ diagnostic codes with the sole purpose of finding unreported or under reported codes, but deliberately designed their chart reviews and audits to prevent the discovery of unsupported or up-charged codes. By doing so, UHG sought increased reimbursement from Medicare based on the make-up of its Medicare Advantage Plan’s patient population. Swoben alleges that those chart reviews violated the FCA based on UHG’s certification that the patient diagnostic codes accurately portrayed their patient population as determined by due diligence performed through UHG’s chart reviews. However, because UHG only focused on the positive payment adjustments and not potential negative payment adjustments, that certification was false. The DOJ, in their complaint, states that the due diligence requirement under CMS prohibits a Medicare Advantage Plan from designing a chart review procedure that does not “look both ways”. A Medicare Advantage Plan must implement compliance programs that exercise reasonable diligence to ensure the data being submitting is accurate, regardless of whether it will effect the Plan in a positive or negative way.
UHG is the nation’s largest Medicare Advantage Organization. The potential damages for this case exceed $1 billion. That would place the Swoben-UHG case among the top whistleblower-promoted cases on record. The DOJ has also combined Swoben’s lawsuit with another whistleblower suing UHG under similar pretenses.
Our firm has been monitoring this case as a result of its impact on our clients and the overly burdensome Medicare Advantage audits that they continue to encounter. Although the DOJ has made clear that chart reviews and audits are an essential part of the insurance companies’ duties under the FCA, the Medicare Advantage Plans cannot conduct audits in a manner that only ensures increased payments. Accordingly, the Swoben-UHG case may have an impact on the method in which Medicare Advantage Plans audit providers moving forward.