Cooperating for better care.

Center for Medicare Advocacy

Tag Archives

Feds join lawsuit alleging UnitedHealth engaged in massive Medicare fraud

By FRED SCHULTE

Kaiser Health News

The Justice Department has joined a California whistleblower’s 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’s case with that of another whistleblower.

Swoben has accused the insurer of “gaming” the Medicare Advantage payment system by “making patients look sicker than they are,” said his lawyer, William K. Hanagami. Hanagami said the combined cases could prove to be among the “larger frauds” ever against Medicare, with damages that he speculates could top $1 billion.

UnitedHealth spokesman Matt Burns denied any wrongdoing by the company. “We 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,” he wrote in an email.

Burns also said that “litigating 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.”

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 — about a third of those eligible for Medicare — at a cost to taxpayers of more than $150 billion a year.

Although the plans generally enjoy strong support 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 decision to intervene means that the Justice Department is taking over investigating the case, greatly raising the stakes.

“This 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,” said Patrick Burns, associate director of Taxpayers Against Fraud, based in Washington, a nonprofit supported by whistleblowers and their lawyers. Burns said the “winners here are going to be American taxpayers.”

Burns also contends 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.

“This is not one company engaged in episodic bad behavior, but a lucrative business plan that appears to be national in scope,” Burns said.

On Monday, the government said it wants to consolidate the Swoben case with another whistleblower action 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 risk score.

But overspending tied to inflated risk scores has repeatedly been cited by government auditors, including the Government Accountability Office. A series of articles published in 2014 by the Center for Public Integrity found that these improper payments have cost taxpayers tens of billions of dollars.

“If the goal of fraud is to artificially increase risk scores and you do that wholesale, that results in some rather significant dollars,” Hanagami said.

David Lipschutz, senior policy attorney for the Center for Medicare Advocacy, a nonprofit offering legal assistance and other resources for those eligible for Medicare, said his group is “deeply concerned by ongoing improper payments” to Medicare Advantage health plans.

These overpayments “undermine the finances of the overall Medicare program,” he said in an emailed statement. He said his group supports “more rigorous oversight” 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 in draft regulations issued in January 2014 that it would begin requiring that Medicare Advantage plans report any improper payment — either too much or too little.

These reviews “cannot be designed only to identify diagnoses that would trigger additional payments,” the proposal stated.

But CMS backed off the regulation’s reporting requirements in the face of opposition from the insurance industry. The agency didn’t 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 “does not relieve defendants of the broad obligation to exercise due diligence in ensuring the accuracy” of claims submitted for payment.

The Justice Department concluded in the brief that the insurers “chose not to connect the dots,” even though they knew of both overpayments and underpayments. Instead, the insurers “acted in a deliberately ignorant or reckless manner in falsely certifying the accuracy, completeness and truthfulness of submitted data,” 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.


What happens when primary-care incentive-pay program ends?

By MICHELLE ANDREWS

For Kaiser Health News

Many primary-care practitioners will be a little poorer next year because of the expiration of an Affordable Care Act program that has been paying them a 10 percent bonus for caring for Medicare patients. Some say the loss may trickle down to the patients, who could have a harder time finding a doctor or have to wait longer for appointments. But others say the program has had little impact on their practices, if they were aware of it at all.

The incentive program began in 2011 and was designed to address disparities in Medicare reimbursements between primary-care physicians and specialists. It distributed $664 million in bonuses in 2012, the most recent year that figures are available, to roughly 170,000 primary care practitioners, awarding each an average of $3,938, according to a 2014 reportby the Medicare Payment Advisory Commission.

Although that may sound like a small adjustment, it can be important to a primary-care practice, says Dr. Wanda Filer, president of the American Academy of Family Physicians. “It’s not so much about the salary as it’s about the practice expense,” she explains. “Family medicine runs on very small margins, and sometimes on negative margins if they’re paying for electronic health records, for example. Every few thousand makes a difference.”

Doctors who specialize in family medicine, internal medicine and geriatrics are eligible for the bonuses, as are nurse practitioners and physician assistants.

Medicare generally pays lower fees for primary-care visits to evaluate and coordinate patients’ care than for procedures that specialists perform. The difference is reflected in physician salaries. Half of primary-care physicians made less than $241,000 in 2014, while for specialists the halfway mark was $412,000, according to the Medical Group Management Association’s annual provider compensation survey.

The impact of the bonus program is larger on practices with a substantial number of Medicare patients. Dr. Andy Lazris estimates 90 percent of the patients that his five-practitioner practice in Columbia, Md., treats are on Medicare.

“When the bonus payments started, it was a pretty big deal for us,”  Dr. Lazris says. The extra $85,000 they received annually allowed them to hire two people to deal with the administrative requirements for being part of an Accountable Care Organization and to help the practice incorporate two new Medicare programs related to managing patients’ chronic diseases or overseeing their moves from a medical facility to home.

Next year, if they can’t make up the lost bonus money by providing more services, it’ll mean a pay cut of $17,000 per practitioner, Lazris says.

Although in some practices, doctors try to see more patients to make up for cuts in reimbursements, that is harder for a group focusing on the elderly. “Part of what we do in geriatrics is spend a lot of time with our patients,” he says. “We have to, when someone has five conditions and takes five minutes to get into the room. The basic office visit is 30 minutes.”

The incentive program was an effort to address shortcomings in Medicare’s system of paying providers mostly a la carte for services, which tends to undervalue primary care providers’ ongoing role in coordinating patients’ care.  Earlier this year, Medpac proposed that Congress replace the expiring primary care incentive program with a per-beneficiary payment to primary care physicians that would be paid for by reducing payments for non-primary care services. That proposal hasn’t made any headway. Meanwhile, physician trade groups have lobbied unsuccessfully for an extension of the Medicare bonus program.

The expiration of the Medicare incentive program is particularly painful because it comes on the heels of a similar bonus program for Medicaid primary care services that ended in 2014, says Dr. Wayne J. Riley, president of the American College of Physicians, a professional organization for internists.

“There will be some physicians who say they can’t take any more Medicare patients,” Riley predicts.

An attorney for an advocacy group for Medicare beneficiaries says they support the bonus payments and hope that physicians won’t shut them out.

“We don’t have any evidence to show that primary care docs will stop seeing Medicare beneficiaries without the payment bump,” says David Lipschutz, a senior policy lawyer  at the Center for Medicare Advocacy.

The vast majority of non-pediatrician primary-care doctors accept patients who are covered by Medicare, according to a national survey of primary care providers by the Commonwealth Fund and the Kaiser Family Foundation. But while 93 percent take Medicare, a smaller percentage, 72 percent, accept new Medicare patients. [Kaiser Health News is an editorially independent program of the foundation.]

Not all primary-care practitioners will miss the incentive program, according to the Commonwealth/KFF survey. Only 25 percent of those surveyed said they received a bonus payment; half didn’t know the program existed.

Of physicians who were aware of and received Medicare bonus payments, 37 percent said it made a small difference in their ability to serve their Medicare patients, and 5 percent said it made a big difference. However, nearly half — 48 percent — said it made no difference at all.

 


New rules would modernize nursing homes

 

By Susan Jaffe, for Kaiser Health News

kaiserhealthnews.org

After nearly 30 years, the Obama administration wants to modernize the rules nursing homes must follow to qualify for Medicare and Medicaid payments.

The hundreds of pages of proposed changes cover everything from meal times to use of antipsychotic drugs to staffing.  Some are required by the Affordable Care Act and other recent federal laws, as well as the president’s executive order directing agencies to simplify regulations and minimize the costs of compliance.

“Today’s measures set high standards for quality and safety in nursing homes and long-term care facilities,” said Health and Human Services Secretary Sylvia M. Burwell. “When a family makes the decision for a loved one to be placed in a nursing home or long-term care facility, they need to know that their loved one’s health and safety are priorities.”

Officials announced the update as the White House Conference on Aging convened Monday.  The once-a-decade conclave sets the agenda for meeting the diverse needs of older Americans, including long-term care options.  This month also marks the 50th anniversary of the Medicare and Medicaid programs, which cover almost 125 million older, disabled or low-income Americans. Medicare and Medicaid beneficiaries make up the majority of residents in the country’s more than 15,000 long-term care facilities.

“The existing regulations don’t even conceive of electronic communications the way they exist today,” said Dr. Shari Ling, Medicare’s deputy chief medical officer. “Also there have been significant advances in the science and delivery of healthcare that just weren’t imagined at the time the rules were originally written. For example, the risks of anti-psychotic medications and overuse of antibiotics are now clearly known, when previously they were thought to be harmless.

The proposed regulations include  a section on electronic health records and measures to better ensure that patients or their families are involved in care planning and in the discharge process.  The rules also would strengthen infection control, minimize the use of antibiotic and antipsychotic drugs and reduce hospital readmissions.

Revised rules would also promote more individualized care and help make nursing homes feel more like home.  For example, facilities would be required to provide “suitable and nourishing alternative meals and snacks for residents who want to eat at non-traditional times or outside of scheduled meal times.”

Residents should also be able to choose their roommates.  “Nursing facilities not only provide medical care, but may also serve as a resident’s home,” the proposed rules say. “Our proposed provision would provide for a rooming arrangement that could include a same-sex couple, siblings, other relatives, long term friends or any other combination” as long as nursing home administrators “can reasonably accommodate the arrangement.”

Consumer advocates are likely to be disappointed that officials are not including recommendations to set a federal nurse-to-resident ratio.

However, the proposed changes would require that nurses be trained in dementia care and preventing elder abuse to better meet residents’ needs.

“We believe that the focus should be on the skill sets and specific competencies of assigned staff,” officials wrote in the proposed rules, “to provide the nursing care a resident needs rather than a static number of staff or hours of nursing care that does not consider resident characteristics.”

Nursing homes will be required to report staffing levels, which Medicare officials said they will review for adequacy.

“It’s a competency approach that goes beyond a game of numbers,” said Ling. “If residents appear agitated, figure out why, get at the cause of the problem,” she said, instead of resorting to drugs to sedate residents.

Advocates for nursing home residents argue that because of inadequate staffing, residents with dementia are often inappropriately given antipsychotic drugs, even though that can be dangerous for them. The new rules would help control the use of these drugs by requiring the facility’s pharmacist to monitor drugs that are prescribed for excessive periods of time or other irregularities and require the resident’s physician to address the problem or explain in the resident’s medical record why the medication is necessary.

“We don’t have enough nursing staff,” Toby Edelman, a senior policy attorney at the Center for Medicare Advocacy, said before the rules were released.  Federal law requires only one registered nurse on the day shift for a 20-bed facility or a 500-bed facility, licensed practical nurses around the clock and sufficient staff to meet residents’ needs, she said.

“We don’t look at the specific staffing positions per se,” said Greg Crist, a spokesman for the American Healthcare Association, which represents 11,000 skilled-nursing facilities.  “We look at the needs of the individuals when determining staff levels, and that is best addressed in the resident’s care plan.”

Although there are also no provisions addressing enforcement in the proposed rule, Ling said  it “will permit detection of violations to enable enforcement  by lessening the noise.”

“The biggest problem is that the rules we have now are not enforced,” said Edelman.  “We have a very weak and timid enforcement system that does everything it can to cajole facilities into compliance instead of imposing penalties for noncompliance.”

A report by the Center for Medicare Advocacy last year found that some serious violations often were not penalized.

“Once the new rules are finalized, they will be added to the items nursing home inspectors check,” Ling said.


Officials look at ways to cut Medicare hospice costs

By  SUSAN JAFFE, for Kaiser Health News.

Medicare officials are considering changes in the hospice benefit to stop the federal government from paying twice for care given to dying patients. But patient advocates and hospice providers fear a new policy could make the often difficult decision to move into hospice care even tougher.

Patients are eligible for hospice care when doctors determine they have no more than six months to live. They agree to forgo curative treatment for their terminal illness and instead receive palliative or comfort care. However, they are also still allowed Medicare coverage for health problems not related to their terminal illness, including chronic health conditions, or for accidental injuries.

Medicare pays a set amount to the hospice provider for all treatment and services related to the terminal illness, including doctor’s visits, nursing home stays, hospitalization, medical equipment and drugs.  If a patient needs treatment that hospice doesn’t provide because it is not related to the terminal illness — or the patient seeks care outside of hospice — Medicare pays the non-hospice providers. The problem is that sometimes Medicare pays for care outside the hospice benefit that it already paid hospice to cover.

To reduce the chances of these duplicative payments, Medicare officials have announced that they are examining whether to assume “virtually all” the care that hospice patients receive should be covered under the hospice benefit.

Medicare has been paying millions of dollars in recent years to non-hospice providers for care for terminally ill patients under hospice care, according to government reports.

The Medicare Payment Advisory Commission (MedPAC), an independent organization that advised Congress, found that in 2012, Medicare paid $1 billion to hospitals, nursing homes, therapists and other providers for services for hospice patients unrelated to their terminal illness.

The commission did not estimate how much of that was incorrectly billed and should have been covered by hospices. Prescription-drug plans received more than $33 million in 2009 for drugs that probably should have been covered by the hospice benefit, according to an investigation by the Department of Health and Human Services’ inspector general.

Hospice is growing rapidly among older Americans. Of those Medicare beneficiaries who died in 2013, nearly half used hospice, double the rate in 2000, MedPAC also found. Over the same time period, Medicare spending for hospice services grew five-fold, to $15 billion.

Medicare officials initially mentioned last year that they were exploring possible changes. Concerns about duplicative payments “strongly suggests that hospice services are being ‘unbundled,’ negating the hospice philosophy of comprehensive, holistic care and shifting the costs to other parts of Medicare, and creating additional cost-sharing burden to those vulnerable Medicare beneficiaries who are at end-of-life,” they wrote in regulations containing this year’s hospice payment rates and other program rules. Officials have not yet issued a formal proposal.

“There will always be exceptions for people who have terminal conditions and have other conditions that need to be attended to,” said Sean Cavanaugh, deputy administrator at the Centers for Medicare & Medicaid Services. “But the majority of their services would be provided through hospice.”

Seniors’ advocates are worried that putting all coverage under the hospice benefit will create obstacles for patients. Instead, Medicare should go after hospice providers who are shifting costs to other providers that Medicare expects hospice to cover, said Terry Berthelot, a senior attorney at the Center for Medicare Advocacy, who urged the government to protect hospice patients’ access to non-hospice care.

“The easiest thing for CMS to do is to say everything would be related to the terminal illness and then there would be no billing problems,” Berthelot said. But federal law, guarantees hospice patients Medicare coverage to control diabetes, blood pressure or other conditions not related to their terminal illness.

“If your blood sugar gets out of control, that could hasten your death,” she said. “But people shouldn’t be rushed off to die because they’ve elected the hospice benefit.”

Cavanaugh said the government is not trying to restrict drugs or other Medicare benefits for hospice patients.

“It’s more about getting the payment right,” he said. “The question is how to clearly circumscribe the benefit, to define what’s in the hospice benefit and what is not.”

That’s not always easy to figure out.

If a cancer patient in hospice slips on some ice and breaks her wrist, the injury could have happened because the cancer has attacked the bones, making them thin and brittle, said Dr. May Al-Abousi, medical director for hospice services at University Hospitals in Cleveland. Treatment for the injury would be covered by hospice.  But the injury would not necessarily be part of the hospice benefit for someone with a terminal illness other than cancer, she said.

“Medicine has no cookbook, where we can apply all-or-none rules,” she said.

Sometimes a hospice provider may not even know when a patient has gone to the hospital and there’s usually no way the hospital knows the patient is in hospice unless the patient makes that clear, said Judi Lund Person, at the National Hospice and Palliative Care Organization,  which represents nearly 2,000 hospice companies.

“The emergency room physician should be aware that this is a hospice patient with lung cancer as opposed to an 85-year-old male who fell at Denny’s,” she said.

Patients and their families may be afraid to volunteer that information, said Dr. Al-Abousi.  “A lot of people get scared when they hear the “H” word,” she said.  “They think once they sign that paper for Medicare, nothing else is going to be covered.”

.


Contact Info

info@cmg625.com

(617) 230-4965

Wellesley, Mass