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Feds: UnitedHealth overcharged Medicare by $1 billion

By FRED SCHULTE

For Kaiser Health News

The Justice Department on Tuesday accused giant insurer UnitedHealth Group of overcharging the federal government by more than $1 billion through its Medicare Advantage plans.

In a 79-page lawsuit filed in Los Angeles, the Justice Department alleged that the insurer made patients appear sicker than they were in order to collect higher Medicare payments than it deserved. The government said it had “conservatively estimated” that the company “knowingly and improperly avoided repaying Medicare” for more than a billion dollars over the course of the decade-long scheme.

“To ensure that the program remains viable for all beneficiaries, the Justice Department remains tireless in its pursuit of Medicare fraud perpetrated by healthcare providers and insurers,” said acting U.S. Attorney Sandra R. Brown for the Central District of California, in a statement announcing the suit. “The primary goal of publicly funded healthcare programs like Medicare is to provide high-quality medical services to those in need — not to line the pockets of participants willing to abuse the system.”

Tuesday’s filing is the second time that the Justice Department has intervened to support a whistleblower suing UnitedHealth under the federal False Claims Act. Earlier this month, the government joined a similar case brought by California whistleblower James Swoben in 2009. Swoben, a medical data consultant, also alleges that UnitedHealth overbilled Medicare.

The case joined on Tuesday was first filed in 2011 by Benjamin Poehling, a former finance director for the UnitedHealth division that oversees Medicare Advantage Plans. Under the False Claims Act, private parties can sue on behalf of the federal government and receive a share of any money recovered.

UnitedHealth is the nation’s biggest Medicare Advantage operator, covering about 3.6 million patients in 2016, when Medicare paid the company $56 billion, according to the complaint.

Medicare Advantage plans are private insurance plans offered as an alternative to traditional fee-for-service option.

Medicare pays the health plans using a complex formula called a risk score, which is supposed to pay higher rates for sicker patients than for people in good health. But waste and 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 concluded that improper payments linked to jacked-up risk scores have cost taxpayers tens of billions of dollars.

Tuesday’s court filing argues that UnitedHealth repeatedly ignored findings from its own auditors that risk scores were often inflated — and warnings by officials from the Centers for Medicare & Medicaid Services (CMS) — that it was responsible for ensuring the billings it submitted were accurate.

UnitedHealth denied wrongdoing and said it would contest the case.

“We are confident our company and our employees complied with the government’s Medicare Advantage program rules, and we have been transparent with CMS about our approach under its unclear policies,” UnitedHealth spokesman Matt Burns said in a statement.

Burns went on to say that the Justice Department “fundamentally misunderstands or is deliberately ignoring how the Medicare Advantage program works. We reject these claims and will contest them vigorously.”

A spokesman for CMS, which has recently faced congressional criticism for lax oversight of the program, declined comment.

Central to the government’s case is UnitedHealth’s aggressive effort, starting in 2005, to review millions of patient records to look for missed revenue. These reviews often uncovered payment errors, sometimes too much and sometimes too little. The Justice Department contends that UnitedHealth typically notified Medicare only when it was owed money.

UnitedHealth “turned a blind eye to the negative results of those reviews showing hundreds of thousands of unsupported diagnoses that it had previously submitted to Medicare, according to the suit.

Justice lawyers also argue that UnitedHealth executives knew as far back as 2007 that they could not produce medical records to validate about 1 in 3 medical conditions Medicare paid UnitedHealth’s California plans to cover. In 2009, federal auditors found about half the diagnoses were invalid at one of its plans.

The lawsuit cites more than a dozen examples of undocumented medical conditions, from chronic hepatitis to spinal cord injuries. At one medical group, auditors reviewed records of 126 patients diagnosed with spinal injuries. Only two were verified, according to the complaint.

The Justice Department contends that invalid diagnoses can cause huge losses to Medicare. For instance, UnitedHealth allegedly failed to notify the government of at least 100,000 diagnoses it knew were unsupported based on reviews in 2011 and 2012. Those cases alone generated $190 million in overpayments, according to the suit.

While Medicare Advantage has grown in popularity and now treats nearly 1 in 3 elderly and disabled Medicare patients, its inner workings have remained largely opaque.

CMS officials for years have refused to make public financial audits of Medicare Advantage insurers, even as they have released similar reviews of payments made to doctors, hospitals and other medical suppliers participating in traditional Medicare.

But Medicare Advantage audits obtained by the Center for Public Integrity through a court order in a Freedom of Information Act lawsuit show that payment errors — typically overpayments — are common.

All but two of 37 Medicare Advantage plans examined in a 2007 audit were overpaid — often by thousands of dollars per patient. Overall, just 60 percent of the medical conditions health plans were paid to cover could be verified. The 2007 audits are the only ones that have been made public.

CMS officials are conducting more of these audits, called Risk Adjustment Data Validation, or RADV. But results are years overdue.

 


CMS gives states reprieve on new Medicaid standards

 

By PHIL GALEWITZ

Kaiser Health News

The Trump administration has given states three extra years to carry out plans for helping elderly and disabled people receive Medicaid services without being forced to go into nursing homes.

Federal standards requiring states find ways of delivering care to Medicaid enrollees in home and community-based settings will take effect in 2022 instead of 2019, the Centers for Medicare & Medicaid Services announced this week.

The standards were set by an Obama administration rule adopted in 2014 that governs where more than 3 million Medicaid enrollees get care.

Among other things, the rule requires states to provide opportunities for enrollees to engage in community life, control their own money and seek employment in competitive settings. It also ensures that enrollees in group homes and other residential settings get more privacy and housing choices that include places where non-disabled people live.

Matt Salo, executive director of the National Association of Medicaid Directors, applauded the delay.

“We have long been on record saying that the regulation was hopelessly unrealistic in its time frame,” he said. “Delaying it actually helps consumers because the underlying regulation was going to push too many changes too fast into a system that wasn’t ready.”

The Obama administration’s 2014 rule was an effort to create a federal standard to improve the quality of care that the disabled receive outside institutions.

Some states had tried — and struggled — to make changes on their own, partly due to a lack of funding and political difficulties of changing deeply entrenched relationships with providers.

Some had, for instance, forced providers to change long-standing operations at group homes and so-called sheltered workshops, such as Goodwill Industries, where disabled people often work apart from other employees, performing menial tasks for less than minimum wage.

Helping disabled people find work in places where they are not segregated costs states more money, said Gary Blumenthal, CEO of the Association of Developmental Disabilities Providers.

The delay in implementing the federal rule is “a victory for the status quo and for states reluctant to embrace the [new standards],” he said.

States spent several years fighting the new rules during the Obama administration and that slowed their planning, said Elizabeth Priaulx, senior legal specialist with the National Disability Rights Network. She noted states were under pressure from nursing homes and for-profit group homes to resist the changes.

“It is unfortunate the delay had to occur,” but many states were not ready, she said.

The new rule also directs states and providers to reconfigure existing community settings such as group homes to ensure that people will have more privacy. “Without these dollars it’s difficult to change the system,” Blumenthal said.

Funds Already Shifting

In 2014, state Medicaid programs for the first time spent more on long-term care in home and community-based settings than on nursing homes. But there was great variation: Mississippi spent about 25 percent of its long-term care dollars on home and community care while Oregon and other states spent nearly 80 percent.

Camille Dobson, deputy executive director of the National Association of States United for Aging and Disability, said the delay was important for states worried about losing federal funding if they didn’t meet the new standards.

“It was very likely that most of the states would not have been in compliance by March 2019 and so CMS would [have been] faced with taking money away from programs that help people stay in their homes rather than go to nursing facilities,” Dobson said.

The administration’s announcement of the delay came less than a week after the House passed the American Health Care Act, which would take $880 billion over 10 years out of the Medicaid program. It was expected after Health and Human Services Secretary Tom Price in March invited states to apply for waivers from federal Medicaid rules that he said were too onerous to help improve the program.

So far, Tennessee is the only state that has received final approval from CMS for its implementation plan. States still face a 2019 deadline to gain approval for their implementation plans.

Kathy Carmody, CEO of The Institute on Public Policy for People with Disabilities in Illinois, said there is concern the Trump administration may not just delay the rule’s implementation, but eventually eliminate it altogether.

“We are disappointed,” she said, noting that Illinois ranks last or near last on several measures of care for people receiving home and community-based services. That includes having about half of its disabled Medicaid enrollees in residential care settings with seven or eight other disabled people and less than 6 percent of its disabled enrollees in competitive employment, she said.

“We were really hoping the rule would be a push from the federal government to help us evolve into the 21st century and get out of the mid-1980s where we are stuck,” Carmody said.


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.


Trump’s CMS pushes back against bundled payments

knee

The CMS has delayed the expansion of a major bundled- payment pilot, Comprehensive Care for Joint Replacement, and implementation of its bundled-payment initiatives for cardiac care to Oct. 1, 2017, from July 1, according to an interim final rule posted to the Federal Register. It also again delayed the effective date of a final rule detailing the  implementation process  for CJR and other bundled-payment programs, to May 20, 2017 from March 21.

The agency is considering delaying  implementation of all bundled-payment initiatives even further, until 2018.

Modern Healthcare speculated that the Trump administration’s “move to delay these initiatives raises questions about the future of government initiatives to usher healthcare out of fee-for-service operations and into a new age of value-based payment.”

The new secretary of health and human services is Tom Price, M.D., who had a very lucrative career as an orthopedic surgeon and has been a major investor in some medical companies. CMS ultimately reports to him and President Trump.

To read more, please hit this link.


Providers complain about lack of guidance on ‘observation’ status

 

Modern Healthcare reports that  providers say that the lack of guidance from CMS about a new rule mandating that hospitals notify Medicare patients why they are receiving “observation” care could cause hospitals to lose billing privileges and patients.
Beneficiaries must spend three consecutive nights as admitted patients in a hospital  for Medicare to cover subsequent skilled-nursing facility costs; observation days don’t count.

The publication reported that  as of March 8 hospitals had to begin “giving out the notices, which alert patients that they received observation care rather than being admitted as an inpatient. CMS estimates as many as 1.4 million beneficiaries will receive the notices every year, and they are meant to cut down on the surprise bills observation patients tend to receive.”

“The CMS requires hospitals to give patients a reason for their observation status, but the CMS has declined repeated requests from hospitals to suggest language that providers should use. Providers are concerned that the vague instructions put them at risk of auditor citations.”

“The stakes are huge in that without guidance from CMS, each auditing organization is left only with their personal interpretation if a hospital is in compliance or not,” Ronald Hirsch, M.D., a vice president at R1 Physician Advisory Services, a consulting firm on billing matters for providers, told Modern Healthcare.

The publication added that a CMS spokesman declined to comment on the issue, but pointed to an FAQ document on the agency’s Web site “that encourages providers to use their clinical judgment when writing the notices and make them ‘reasonably understandable’ to the beneficiary.”

To read more, please hit this link.

 

 


Should standards be lowered for safety-net hospitals?

 

The federal government sometimes withholds money from safety-net hospitals because they fail to meet certain standards.

A piece in governing.com asks whether those standards should, at least in some cases, be lowered.

Penalties “handed down by CMS are part of the Affordable Care Act {and} are meant to motivate hospitals to correct procedures so as to avoid patient safety violations. But the problem with these penalties, some health policy experts say, is that they don’t take into account the particular challenges that individual hospitals face.”

“Most of the penalized hospitals take care of the poorest and sickest,” Ashish Jha,  M.D., a  Harvard professor who focuses on patient safety, told the news service.

“Jha and others argue that CMS should add a risk adjustment factor. Until then, safety-net and academic-centered hospitals {with the most challenging patients} will continue to get slapped with the most penalties.”

“Adding to the hospitals’ exasperation is the fact that there is little information about whether the penalties have actually improved health outcomes.”

To read the piece, please hit this link.

 


Change in CMS primary-care program seen scaring away some providers


Looking at the future evolution of the MSSP

evolve

In HealthcareDIVE,   Farzad Mostashari, M.D., and Travis Broome write about the continuing evolution of the Medicare Shared Savings Program. Dr. Mostashari is founder and CEO of Aledade Inc., where Mr. Broome is the lead policy person. Dr. Mostashari is the former national coordinator for health information technology at the U.S. Department of Health and Human Services.

”{M}ore investment and more fine-tuning will be required if we are to strengthen the MSSP and use it to help power the transformation of Medicare to a value-based system.

”First, CMS needs to tailor the risk for MSSP ACOs so that it is enough to motivate, but not sink a small practice. It’s critical that the risk small practices take on bears some relationship to the financial resources of the ACO and its members. If it’s too much so that a bad year that happens because of an external event – such as an epidemic or disaster – can sink even the most well-intentioned practice, then no one will enter into an ACO arrangement.”

“”Second, we need an accurate way to measure whether or not an MSSP ACO creates value. The best way to do that is through a difference-in-difference approach. In this, the key question asked is: Did a Medicare beneficiary get better care at lower cost in the ACO than if that same Medicare beneficiary had not been in the ACO? To get closer to this difference-in-difference approach, CMS needs to move away from national inflation updates and artificial risk-scoring methodologies to regional inflation updates and direct risk scoring.”

”Third, CMS should continue to seek to simplify the program. For example, while we appreciate the work that was done in Track 1+, it is quite possible all of the same benefits could have been accomplished by adding just a few lines of changes to Track 2 without the need to create a whole new track. This would have been both simpler and created a better business case for physicians to move towards risk.”

To read more, please hit this link.


The future of CMS payment models

space

Print (c. 1902) by Albert Robida showing air travel over Paris in the year 2000 as people leave the opera.

The trouble with the future is that it’s so much less knowable than the past.”

 John Lewis Gaddis, ”The Landscape of History”

The authors of an article in Health Affairs look at future CMS payment models based in part on recent payment evolution. Among the predictions:

Population-based models and disease-specific models will continue to develop.

”As ACOs mature and stabilize, opportunities exist to expand them to cover more lives and allow more providers, payers, and organizations to participate in accountable care. More established ACOs will need to expand the spectrum of healthcare providers they work with including behavioral- health, post-acute care and pharmacy providers, and will need to consider the socioeconomic needs—like transportation, housing, and education—of their patient populations.”

”CMS has relatively few disease-specific models, which offers an opportunity to take knowledge gained from current programs and expand to other diseases and co-morbidities through either specialty ACOs or bundled payment programs. The Oncology Care Model and the Comprehensive End-Stage Renal Disease (ESRD) Care Model are two examples of disease-specific models. The ACO movement has focused around primary and general care, but ACOs are most successful when they include providers that are involved at all levels of patient care, including specialists.”

More efforts to show bigger cost-savings

As the healthcare culture shifts to adopting value-based care, ”opportunities exist for more payment models and models that involve higher levels of risk, although mandatory demonstration models are unlikely to continue” if, as expected, Tom Price, M.D, becomes health and human services secretary.

”As ACOs demonstrate success and more physicians have confidence in accountable care, ACOs can move from shared savings-only to taking on more risk.”

Efforts to encourage growth of multi-payer, state and wider- region initiatives

”Multi-payer initiatives spread cost among different payers—for example, commercial and Medicaid—and provide a shared incentive to improve quality and care. When multiple stakeholders work together toward a common goal, collaboration is rewarded and patients benefit. State and regional initiatives also allow states greater flexibility in implementing programs that work best for their populations.”

”Maryland, Vermont and Colorado serve as examples of state multi-payer initiatives. Each of these state’s programs are designed to improve primary care through promoting care coordination, health management, patient-centered care, and disease prevention.”

Concurrent models will be developed

”For some physicians, particularly specialists, aligning different payment models might make more sense than being restricted to a single model. For example, participating in different bundled-payment programs could benefit a specialist who has less influence than a primary-care physician over a patient’s overall health management. CMS has an opportunity to provide clarity and guidance to physicians on which models work best together for different types of physicians or practices.”

To read more, please hit this link.


10 things about CMS bundled-payment rule

 

Becker’s Hospital Review has done a handy 10 things to know about CMS’s final rule on a mandatory bundled-payment program for coronary-artery-bypass surgery and its expansion of the existing Comprehensive Care for Joint Replacement program. To read whole article, please hit this link.

Here they are, stripped down:

1. “Under the final rule, acute care hospitals in certain markets will be accountable for the cost and quality of care provided to heart attack, coronary bypass and surgical hip and femur fracture patients beginning with hospitalization and extending 90 days after discharge.”

2. “The rule expands the existing CJR model to include additional surgical treatments for hip and femur fractures….”

3. “Hospitals will receive retrospective episode-based payments under the new bundles. Hospitals that spend less than the target price for the episode of care while meeting or exceeding quality standards keep the savings achieved. A hospital is required to repay Medicare if the costs exceed the target price.”

4. “The final rule includes a cardiac rehabilitation payment model, which will test whether a payment incentive can increase the utilization of cardiac rehabilitative services….”

5. ”The heart attack and coronary bypass bundled payment model will be mandatory for hospitals in 98 metropolitan statistical areas….”

6. ”About 860 hospitals will participate in the hip- and femur- fracture bundles, which will be tested in the 67 MSAs already selected for the CJR model.”

7. ”The cardiac rehabilitation payment model will be implemented in 90 MSAs, 45 of which were not selected for the heart attack and coronary bypass models….”

8. ”The cardiac bundles and the expanded CJR model qualify as Advanced Alternative Payment Models under the Medicare Access and CHIP Reauthorization Act and the Quality Payment Program.”

9. ”The American Hospital Association said it was pleased with some parts of the final rule, including the flexibility the rule provides regarding MACRA participation. However, the AHA expressed concern about the pace of change. ‘The bundled payment model for cardiac care is the second mandatory demonstration project the agency has finalized in just the past 15 months,’ said the AHA. ‘This is too much, too soon.”‘

10. The bundles will begin July 1, 2017.


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