The Justice Department has joined a California whistleblower鈥檚 lawsuit that accuses insurance giant UnitedHealth Group of fraud in its popular Medicare Advantage health plans.
Justice officials filed legal papers to intervene in the suit, first brought by whistleblower James Swoben in 2009, on Friday in federal court in Los Angeles. On Monday, they sought a court order to combine Swoben鈥檚 case with that of another whistleblower.
Swoben has accused the insurer of 鈥済aming鈥 the Medicare Advantage payment system by 鈥渕aking patients look sicker than they are,鈥 said his attorney, William K. Hanagami. Hanagami听said the combined cases could prove to be听among听the 鈥渓arger frauds鈥 ever against Medicare, with damages that he speculates could top $1 billion.
UnitedHealth spokesman Matt Burns denied any wrongdoing by the company. 鈥淲e are honored to serve millions of seniors through Medicare Advantage, proud of the access to quality health care we provided, and confident we complied with program rules,鈥 he wrote in an email.
Burns also said that 鈥渓itigating against Medicare Advantage plans to create new rules through the courts will not fix widely acknowledged government policy shortcomings or help Medicare Advantage members and is wrong.鈥
Medicare Advantage is a popular alternative to traditional Medicare. The privately run health plans have enrolled more than 18 million elderly and people with disabilities 鈥 about a third of those eligible for Medicare 鈥 at a cost to taxpayers of more than $150 billion a year.
Although the plans generally enjoy strong听听in Congress, they have been the target of at least a half-dozen whistleblower lawsuits alleging patterns of overbilling and fraud. In most of the prior cases, Justice Department officials have decided not to intervene, which often limits the financial recovery by the government and also by whistleblowers, who can be awarded a portion of recovered funds. A听decision to intervene means that the Justice Department is taking over investigating the case, greatly raising the stakes.
鈥淭his is a very big development and sends a strong signal that the Trump administration is very serious when it comes to fighting fraud in the health care arena,鈥 said Patrick Burns, associate director of Taxpayers Against Fraud Education Fund in Washington,听a nonprofit supported by whistleblowers and their lawyers.听Burns said the 鈥渨inners here are going to be American taxpayers.鈥
Burns also contends听that the cases against UnitedHealth could potentially exceed $1 billion in damages, which would place them among the top two or three whistleblower-prompted cases on record.
鈥淭his is not one company engaged in episodic bad behavior, but a lucrative business plan that appears to be national in scope,鈥澨鼴urns said.
On Monday, the government said it wants to consolidate the Swoben case with another whistleblower action听filed in 2011 by former UnitedHealth executive Benjamin Poehling and unsealed in March by a federal judge. Poehling also has alleged that the insurer generated hundreds of millions of dollars or more in overpayments.
When Congress created the current Medicare Advantage program in 2003, it expected to pay higher rates for sicker patients than for people in good health using a formula called a听.
But overspending tied to inflated risk scores has repeatedly been听听government auditors, including the Government Accountability Office.听听of articles published in 2014 by the Center for Public Integrity found that these improper payments have cost taxpayers tens of billions of dollars.
鈥淚f the goal of fraud is to artificially increase risk scores and you do that wholesale, that results in some rather significant dollars,鈥 Hanagami said.
David Lipschutz, senior policy attorney for the Center for Medicare Advocacy, a nonprofit offering听legal assistance and other resources for those eligible for Medicare,听said his group is 鈥渄eeply concerned by ongoing improper payments鈥 to Medicare Advantage health plans.
These overpayments 鈥渦ndermine the finances of the overall Medicare program,鈥 he said in an emailed statement. He said his group supports 鈥渕ore rigorous oversight鈥 of payments made to the health plans.
The two whistleblower complaints allege that UnitedHealth has had a practice of asking the government to reimburse it for underpayments, but did not report claims for which it had received too much money, despite knowing some these claims had inflated risk scores.
The federal Centers for Medicare & Medicaid Services said听in draft regulations issued in January 2014 that it would begin requiring that Medicare Advantage plans report any improper payment 鈥 either too much or too little.
These reviews 鈥渃annot be designed only to identify diagnoses that would trigger additional payments,鈥 the proposal stated.
But CMS backed off the regulation鈥檚 reporting requirements in the face of opposition from the insurance industry. The agency didn鈥檛 say why it did so.
The Justice Department said in an April 2016 amicus brief in the Swoben case that the CMS decision not to move ahead with the reporting regulation 鈥渄oes not relieve defendants of the broad obligation to exercise due diligence in ensuring the accuracy鈥 of claims submitted for payment.
The Justice Department concluded in the brief that the insurers 鈥渃hose not to connect the dots,鈥 even though they knew of both overpayments and underpayments. Instead, the insurers 鈥渁cted in a deliberately ignorant or reckless manner in falsely certifying the accuracy, completeness and truthfulness of submitted data,鈥 the 2016 brief states.
The Justice Department has said it also is investigating risk-score payments to other Medicare Advantage insurers, but has not said whether it plans to take action against any of them.
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