Editor's Note: This story has been updated to include a separate legal decision related to this case.
The Department of Justice has abandoned much of its False Claims Act lawsuit against UnitedHealth, another setback in the feds' efforts to prosecute the insurer for its Medicare Advantage billing practices.
A federal judge dismissed some of the government's claims against UnitedHealth in a ruling earlier this month and asked the Justice Department to amend its case on those counts. It had until Monday to strengthen its arguments and instead opted not to do so, according to a court filing (PDF).
Though the Justice Department declined to pursue the charges dismissed by U.S. District Judge Michael Fitzgerald, it did preserve claims that UnitedHealth failed to delete inaccurate diagnosis codes, despite having the information available to do so.
The case was initially opened by whistleblower Benjamin Poehling, who was the finance director for UnitedHealth's Medicare and Retirement division. Poehling alleged that the insurer conducted one-sided retrospective reviews of patients' medical records that allowed it to report underpayments while ignoring overbilling.
By inflating risk scores, UnitedHealth could boost its Medicare Advantage payouts, according to Poehling's suit, which was filed in 2011. The DOJ joined the case in 2017.
The justice department abandoned a second MA case against UnitedHealth in October. That suit, originally filed by whistleblower James Swoben, alleged that the insurer gamed the MA program by funding chart reviews to boost risk adjustment payments.
That suit was dismissed by a federal judge, and the Justice Department chose not to strengthen its case and refile. That judge argued that the DOJ had failed to prove that the insurer's actions would have led to claims that were "knowingly false," or that the Centers for Medicare & Medicaid Services wouldn't have made the payouts anyway.
UnitedHealth, meanwhile, has been involved in a separate federal case, in which it says the government put undue burden on MA plans with requirements to report and return overpayments.
Just two days after the DOJ decided not to file an amended complaint, a Delaware judge ruled (PDF) in a separate case that UnitedHealth must turn documents associated with the fraud probe over to investors.
Amalgamated Bank, Coral Springs Police Officers’ Retirement Plan and Central Laborers Pension Fund filed a complaint in the Delaware Court of Chancery last fall to obtain documents related to the whistleblower case to investigate potential mismanagement by UnitedHealth officers and directors. The Delaware judge ruled that the testimony from UnitedHealth officials as part of the DOJ's probe was enough to demonstrate "possible wrongdoing or mismanagement."
Vice Chancellor Tamika Montgomery-Reeves said the investors were entitled to board and committee meeting documents, internal investigation materials and copies of documents referenced in the whistleblower complaint, but stopped short of forcing UnitedHealth to turn over emails of five senior-level officials.