Recently, the United States Department of Justice (DOJ) filed a False Claims Act (FCA) lawsuit against the Medicare Advantage Organization (MAO) Anthem, Inc.. In the lawsuit, the DOJ alleges that Anthem violated the FCA when it knowingly failed to delete inaccurate diagnosis codes that were submitted to the Centers for Medicare and Medicaid Services (CMS) for risk adjustment purposes.
The complaint, filed by the United States Attorney’s Office for the Southern District of New York, alleges that though its coding vendor, Anthem used a “retrospective chart review” program to identify additional diagnosis codes within its beneficiaries’ medical records to submit to CMS. The complaint further alleges that while Anthem marketed this program as an “oversight activity” that would “help ensure that the ICD9 codes [were] reported accurately” to CMS, in reality, the chart review program was used to find additional diagnosis codes that would then be submitted to CMS, which would increase risk scores and enhance revenue.
The government further contends that in spite of the fact that Anthem (as an MAO) has an obligation to find and delete inaccurate diagnosis codes, the company turned “a blind eye” to negative results where chart reviews could not substantiate previously submitted diagnosis codes.
According to the complaint, Anthem “could have readily written a computer algorithm to find inaccurately reported diagnosis codes” through its Medicare Review and Reconciliation group. Instead, the government alleges, it intentionally avoided finding and deleting inaccurate codes that would have reduced the company’s Medicare revenue. The complaint alleges that Anthem made “revenue enhancement” the “sole purpose of its chart review program.”
Of course, it follows that the submission of inaccurate codes means Anthem would have made false attestations to CMS when it annually certified that its data submissions were “accurate, complete, and truthful” to its “best knowledge, information and belief.”
The complaint indicates that Anthem received profits in excess of $100 million or more per year in additional revenue just based on the inaccurate code submissions alone. The head of the Medicare Review and Reconciliation group at Anthem even referred to the program as a “cash cow” for the company because it “consistently produced a ‘return on investment’ of up to 7:1.”
Anthem’s Response
In response to the filing, Anthem released a statement noting that it intends to “vigorously defend our Medicare risk adjustment practices” and that the government is “trying to hold Anthem and other Medicare Advantage plans to payment standards that CMS does not apply to original Medicare.” Anthem also alleged that this lawsuit is “another in a pattern that attempts to hold Anthem and other plans to a standard on risk adjustment practices, without providing clear guidance.”
What is to Come?
The complaint indicates that this may not be the only suit filed against an MAO for this, or similar, allegations. The complaint notes that the government has “sought to enforce” data accuracy in the risk adjustment system by “actively pursuing legal remedies against both MAOs that have knowingly submitted inaccurate and untruthful diagnosis data to CMS and healthcare providers that knowingly caused MAOs to submit inaccurate and untruthful diagnosis data to CMS,” and includes four examples of settlements from 2012-2019 for similar allegations. Of the four examples, only one MAO was mentioned (Freedom Health, Inc.), and the other three entities were healthcare providers.