Medicare Advantage fraud in DOJ's crosshairs after agency reports $2.7B in settlements

Under the False Claims Act, more than $1.8 billion in settlements and judgments was related to health-related matters in the last fiscal year, about two-thirds of the monetary fraud recoveries by the Department of Justice (DOJ).

Scams took place across the industry, affecting managed care providers, hospitals, pharmacies and long-term acute care facilities. The agency said Feb. 22 that $1.8 billion refers to recoveries "arising only from federal losses," but it often recovered more for state Medicaid programs.

The total fraud figure jumps to more than $2.68 billion once including all other types of reported fraud.

Health law expert Bill Sarraille said the findings are a warning shot for health plans.

"The press release goes out of its way to signal that Medicare Advantage plans' risk adjustment practices are DOJ's most important healthcare fraud priority," he told Fierce Healthcare. "It telegraphs that by making MA risk adjustment the first, and most prominent, specific area it addresses."

Cigna Group and Martin's Point Health Care were the first settlements noted by the DOJ. Cigna reached an agreement in October to pay $172 million to settle whistleblower allegations it submitted false Medicare Advantage diagnostic codes to boost reimbursement, before agreeing to sell its Medicare Advantage business to Health Care Services Corp in January, while the latter agreed to pay $22.5 million to settle False Claims Act violations in August.

Settlements are not surprising in this space, said Brett Johnson, partner at law firm Snell & Wilmer.

"It is a highly regulated industry with many confusing regulations that are easily violated even with the most sophisticated compliance programs," he explained.

The DOJ then said it will continue to litigate other cases against UnitedHealth Group, Independent Health Corporation, Elevance Health and Kaiser Permanente.

"Talking about pending cases in a year end piece like this—where the parties are still litigating—is highly unusual," said Sarraille.

The False Claims Act is a federal law that imposes penalties on those who defraud governmental programs. Last year, the DOJ reported $2.2 billion in fraud recovered.

“Protecting taxpayer dollars from fraud and abuse is of paramount importance to the Department of Justice—and these enforcement figures prove it,” said Acting Associate Attorney General Benjamin Mizer in a statement. “The False Claims Act remains one of our most important tools for rooting out fraud, ensuring that public funds are spent properly, and safeguarding critical government programs.”

"When you look at this release in combination with the OIG's recent update of its strategic managed care oversight plan and OIG's forthcoming MA guidance release, the writing is on the wall—the government is coming after MA plans and risk adjustment," Sarraille said.

In January, the Office of Inspector General (OIG) said (PDF) it must "hold MA organizations and MCOs accountable." It also found that 13% of cases result in denied prior authorization requests. The OIG said it would be expanding its engagement with plans and their special investigation units to find fraud.

Jacob Harper, a partner at law firm Morgan Lewis, said it's important for MA plans to be diligent about risk adjustment auditing, as its clear the DOJ is serious about calculating damages in this complex area.

"We anticipate that as OIG, CMS and now DOJ are gaining experience in MA coding submission audits, they will develop a workable playbook on pursuing these types of cases in the future," he said.

Outside of MA plans, the DOJ reiterated its commitment to holding organizations accountable that have contributed to the opioid crisis, pointing to its legal complaints against Rite Aid and Endo Health Solutions.

It also gave examples of pursuing fraud involving unnecessary billing practices, unlawful kickbacks, the California Medicaid program, skin graft reimbursements, cybersecurity and the COVID-19 pandemic.