September 28, 2020

Volume X, Number 272

September 28, 2020

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HHS OIG Flags $2.2 Billion in Potential Medicare Advantage Overpayments for CMS Audits

CMS said it plans to audit risk-adjustment payments that Medicare Advantage (MA) plans received based on having identified additional diagnoses in beneficiary medical chart reviews. CMS’s action was spurred by a recent report from the HHS Office of Inspector General (OIG) entitled, “Billions in Estimated Medicare Advantage Payments From Chart Reviews Raise Concerns.” (Click here for the report).

As the OIG’s report explains, MA insurers receive risk-adjustment payments, based in part on diagnoses, to account for the differing levels of the health of their beneficiaries. This process “levels the playing field for [MA insurers] that enroll sicker beneficiaries who need more costly care.” Doctors and other providers initially submit payment claims with diagnoses to the MA insurers, who submit that data to CMS’s encounter data system. MA insurers may also conduct after-the-fact chart reviews to improve accuracy by adding diagnoses that providers originally missed or deleting others submitted in error. Importantly, per CMS rules, added diagnoses are either supposed to be linked to previously accepted service records or, if unlinked, be supported by documentation from a face-to-face visit.

The OIG audited a recent year’s MA encounter data for diagnoses changes MA plans had made through the chart-review process. The OIG concluded that $2.7 billion in risk-adjustment payments were based on chart reviews identifying additional diagnoses that were not linked to any service records. Further these diagnoses may have lacked a proper support in the medical record showing an actual timely visit related to the diagnosed condition. If such support were in fact lacking, the OIG says the payments were improper. The OIG also concluded that about $2B off the $2.7B went to ten unnamed MA parent organizations among the 137 reviewed.

Based on its findings, the OIG now recommends that CMS audit MA plan payments based on unlinked chart-review diagnoses and make some changes to its processes, including possibly limiting the use of unlinked chart reviews.

While CMS didn’t completely agree with the OIG’s estimated totals of payments, it agreed conceptually with the OIG’s analysis and said that it plans to follow the recommendations. Among other things, CMS will soon audit the beneficiaries with unlinked chart reviews the OIG identified for possible further outreach to the MA organizations involved. CMS also plans to include chart review diagnoses in its routine “Risk Adjustment Data Validation” (RADV) audits and to reconsider its policy of accepting unlinked chart reviews as a source of diagnoses for risk adjustment.

This OIG audit and CMS’s planned actions in response are part of CMS’s broader campaign to tighten oversight of MA payments. But it remains to be seen how CMS’s planned audits will play out. Currently, CMS has a policy, favorable to MA plans, of applying a “Fee-for-Service Adjuster” or “FFS Adjuster” when conducting RADV audits. The FFS Adjuster, which CMS adopted in 2012, tolerates a certain error rate in MA diagnosis codes equivalent to CMS’s estimated coding error rate for traditional Medicare Part A fee-for-service payments—the FFS Adjustor acts as buffer to achieve the “actuarial equivalence” between FFS rates and MA rates that the Medicare Act requires. However, CMS has recently proposed to get rid of the FFS Adjuster, retroactively, for audits of MA payments going way back to 2011. See Medicare and Medicaid Programs; Policy and Technical Changes to the Medicare Advantage, Medicare Prescription Drug Benefit, Program of All Inclusive Care for the Elderly (PACE), Medicaid Fee-For-Service, and Medicaid Managed Care Programs for Years 2020 and 2021, 83 Fed. Reg. 54,982 (Nov. 1, 2018). Facing strong pushback from the industry, CMS delayed finalizing that proposal and is still evaluating comments. If CMS does eliminate this critical buffer, it is almost guaranteed that adversely affected MA plans will challenge the change in court.

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 21


About this Author

Sven Collins Medicare & Medicaid Reimbursement Litigation Attorney Squire Patton Boggs Denver, CO

Sven Collins focuses his practice on Medicare and Medicaid reimbursement litigation, as well as on litigation and risk-management guidance in areas of employment and labor, trade secrets, unfair competition and other commercial disputes.

Sven litigates and tries cases before courts, arbitrators and government agencies and  regularly represents hospitals and healthcare providers in innovative reimbursement appeals seeking additional payment under Medicare.  

He also counsels and represents employers in disputes in a variety of employment and labor-related areas, including...

Colin R. Jennings Government Investigations & White Collar Attorney Squire Patton Boggs Cleveland, OH

Colin R. Jennings has been selected as primary outside counsel for global compliance work by more than 35 public and privately held global companies, and regularly provides guidance and counseling in connection with these companies’ ongoing compliance efforts for both their domestic and international operations, including, when necessary, investigation and defense of compliance-related concerns.

Colin’s experience includes conducting independent reviews of the structure, operation and performance of established compliance programs. Colin regularly conducts compliance reviews and internal investigations throughout the US and globally. His advice on the design, implementation and assessment of compliance programs is informed by extensive internal investigations Colin has conducted and his experience in litigating claims arising from compliance-related matters. Colin regularly presents on global compliance programs, and is the author of numerous articles and chapters on the topic.

Colin has successfully tried numerous civil and criminal matters in various federal and state courts. His active litigation practice focuses on complex civil and criminal matters, including responses to governmental investigations and enforcement actions. As a natural extension of his compliance and litigation practice, Colin has an active data privacy and breach response practice. He regularly interacts with federal, state and international authorities concerning data breaches, and coordinates the forensic analysis and resulting claims or litigation that inevitably follow a breach.

Colin’s criminal practice involves representing public and private corporations and business professionals in response to criminal or regulatory investigations. Throughout the US and globally, he conducts internal investigations into allegations of employee misconduct, fraud or other business crimes, including the Foreign Corrupt Practices Act, False Claims Act, Economic Espionage Act, OFAC sanctions, money laundering and cybercrimes.

In addition, Colin has diverse and extensive experience in complex civil litigation arising from matters of fraud, abuse and criminal misconduct. This work includes the regular representation of professional athletes and other high-net-worth individuals who are the victims of fraud and violations of trust. Colin has represented athletes in all major sports leagues, including the NFL, NBA, MLB, NHL, PGA and LPGA.

Colin is listed in The Best Lawyers in America and in Ohio Super Lawyers.

Colin is the former chair of the Certified Grievance Committee for the Cleveland Metropolitan Bar Association (CMBA) and has served as trial counsel for the CMBA in various attorney discipline matters. He is also the former chair and a member of the leadership team for the CMBA’s Criminal Law Section, and a member of the John M. Manos Inn of Court.