UnitedHealth asks judge to scrap Medicare Advantage overpayment rule

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UnitedHealth is hoping a federal court will grant it a summary judgement in a case it brought against CMS.

UnitedHealth, fresh off a victory in a fraud case the government brought against it, has filed a motion in a separate case to ask a federal judge to throw out a Medicare Advantage overpayment rule.

The motion (PDF) is part of a lawsuit brought by UnitedHealth and its affiliates in early 2016. The case argues that the Centers for Medicare & Medicaid Services’ requires Medicare Advantage plans to report and return overpayments based on an analysis of its members' health status that is "wholly inconsistent" with how it assesses Medicare fee-for-service beneficiaries.

Now the insurer is asking the court to grant it a summary judgment in the case—and vacate the CMS rules it sees as problematic—rather than take the issue to trial. 

Not only does CMS’ rule adopt an interpretation of “overpayment” that is inconsistent with both statutory requirements and the agency’s own past practices, the motion argues, but it also “embraces an impermissibly expansive understanding of when an overpayment has been ‘identified’ by an MA plan.” 

The problem there, UnitedHealth argued, is that the rule requires MA plans to return overpayments even in cases where they weren’t actually identified but “should have” been. That definition of identified is “flatly inconsistent with—or at minimum is an unreasonable reading of—the statutory text and must be set aside,” the brief argued.

UnitedHealth’s motion has not yet been granted, nor has a hearing on the matter been scheduled yet.

The insurer’s filing comes on the heels of a different ruling concerning its Medicare Advantage business. A federal judge recently dismissed a lawsuit brought by a whistleblower—and joined by the Department of Justice—that accused UnitedHealth of fraudulently inflating its Medicare Advantage risk scores to maximize government reimbursement. The judge’s ruling left room for the DOJ to amend and refile its case, but the government opted instead to drop the case.

However, UnitedHealth is facing another whistleblower lawsuit in which the DOJ has intervened, which also takes issue with its risk adjustment practices. That case is still open.

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