A very bad start to the year for Medicare Advantage; whistleblowers and government officials expose questionable risk adjustment coding practices

By Brian Murphy

 

This has been a terrible start to the year for Medicare Advantage.

Senator Chuck Grassley’s report “How UnitedHealth Group Puts the Risk in Medicare Advantage Risk Adjustment” landed like a bombshell on Jan. 12. It revealed the extent of UHG’s “robust diagnosis capture workforce,” from advanced analytics to in-home health assessments to favorable diagnostic definitions that allow for maximum code capture and maximum Medicare funding.

Not all of it was a surprise, but one surprise to me was reading how UHG sells its formula to other payers.

Then on Wednesday Jan. 14, another bombshell: Kaiser agreed to pay $556 million to resolve allegations that it violated the False Claims Act by submitting invalid diagnosis codes for their Medicare Advantage Plan enrollees. Per a DOJ release, “the United States alleged that Kaiser systematically pressured its physicians to alter medical records after patient visits to add diagnoses that the physicians had not considered or addressed at those visits, in violation of CMS rules.”

Where does this leave the industry?

It tells me that we have massive structural issues that need to be addressed.

We need far better standards on what constitutes a reportable diagnosis. Down to the very definition of every diagnosis reported for HCC reimbursement.

It tells me documentation is not enough anymore. The tired cliché “If it’s not documented, it’s not done” is over.

Even it was documented, that’s not enough.

We need evidence that a diagnosis is being treated. I would not code a diagnosis added by a clinician during an in-home health assessment that is not picked up and addressed by a PCP. Show me how that diagnosis is being carried through and fully treated over the course of the year.

From the Grassley report, “MAOs should receive payments that are commensurate to the complexity and acuity of the Medicare beneficiaries that they insure, not their knowledge of coding rules and their ability to find new ways to expand inclusion criteria for diagnoses.”

We need more clarity on the legality of in-home health assessments. For risk adjustment, diagnoses must be supported by the medical record of a face-to-face visit between a patient and a provider, and for outpatient visits, must have required or affected patient care, treatment, or management at the visit. Are licensed clinicians performing in-home health assessments “providers” if they are employed solely to capture diagnoses?

We need evidence of better outcomes of MA patients and reimbursement that matches the outcome and/or the intensity of treatment provided over a calendar year.

We need to break up the vertical integration of big insurance companies and start enforcing antitrust law.

For most of us, it means doing our jobs as well as we can, using the standards and coding guidelines we have. Grassley’s report contains 10 principles of CMS-HCC reporting, one of which is “The diagnostic classification should encourage specific coding.”

Specific coding is not the problem. Coding conditions that don’t get treated and only add to Medicare expenditures is the problem.

 

Whistleblowers led to Kaiser payout

Kaiser’s more than half billion-dollar settlement to resolve a False Claims Act allegation was instigated by mid-revenue cycle professionals internal to the organization. That includes Gloryanne Bryant and Victoria Hernandez as well as Dr. James Taylor.

I’ve known Gloryanne for more than 20 years, dating back to my days writing medical coding newsletters for HCPro. She was a powerhouse in AHIMA and served on the inaugural ACDIS advisory board. I’ve always known her as a stickler for compliance.

Dr. Taylor was a longtime Kaiser physician and former medical director responsible for coding governance, compliance, and revenue-cycle oversight. Taylor filed his complaint after Kaiser failed to address practices he had identified that allegedly inflated beneficiaries’ risk scores and increased Medicare reimbursements without corresponding clinical justification.

The takeaway?

People are your conscience. Take their concerns seriously. It appears, based on a pair of press releases I’ve read (see below) that Kaiser did not, though I’m sure their interpretation will differ.

Here’s a comment from Bryant from the release:

“Health care coding requires rigorous adherence to guidelines and established rules of accuracy and honesty coupled with specific and truthful documentation,” said Bryant. “No patient should be saddled with clinical documentation and diagnoses for conditions they don’t have, and our government programs should not be paying or distributing money based on false documentation and coding.

“Financial pressure should never be allowed to override these basic principles. We filed our complaint when our attempts, over many years, to fix these problems at Kaiser internally were met with silence or even hostility. We are very grateful to Goldberg Kohn for helping us bring these issues to light and ensuring they are taken seriously.”

I did a podcast on this topic with Mary Inman, one of the more fascinating conversations I’ve had on Off the Record. Mary’s firm Whistleblower Partners LLP represented Taylor on the case. See link below.

I recommend listening. Mary offers a no-holds barred look at the whistleblowing process and risks involved. These cases can be long; the Kaiser case lasted 12 years.

Whistleblower Partners attorneys continue to pursue similar charges against UnitedHealth Group.

Another interesting angle: Kaiser’s fine was not just related to the Medicare Advantage program, but also the Affordable Care Act (ACA). Under the ACA insurers collect a greater share of government fundings if beneficiaries have more documented health conditions. Thus the incentive to over-document and over-code is the same as MA.

“The resolution of our clients’ unique Affordable Care Act claims is, to our knowledge, the first time that a case has been brought, litigated and settled on the basis of risk adjustment fraud in that critical program,” says the Goldberg Kohn statement.

 

References

• Chuck Grassley, Grassley Report Details UnitedHealth’s Record of Appearing to Game the Medicare Advantage System, Turning Risk Adjustment into Its Own Business: https://www.grassley.senate.gov/news/news-releases/grassley-report-details-unitedhealths-record-of-appearing-to-game-the-medicare-advantage-system-turning-risk-adjustment-into-its-own-business
• DOJ, Kaiser Permanente Affiliates Pay $556M to Resolve False Claims Act Allegations: https://www.justice.gov/opa/pr/kaiser-permanente-affiliates-pay-556m-resolve-false-claims-act-allegations
• Goldberg Kohn Clients Part of Landmark Settlement With Kaiser Permanente for Alleged Risk Adjustment Fraud: https://www.whistleblowersattorneys.com/newsroom/goldberg-kohn-clients-part-of-landmark-settlement-with-kaiser-permanente-for-alleged-risk-adjustment-fraud/
• Whistleblower Partners’ Client, Dr. James Taylor, Reaches Landmark $556 million Settlement with Kaiser Permanente for Alleged Risk Adjustment Fraud: https://whistleblower.law/news/whistleblower-partners-client-dr-james-taylor-556m-settlement-kaiser-permanente-risk-adjustment-fraud
• Off the Record podcast with Mary Inman (Whistleblower Partners LLC): https://podcasts.apple.com/us/podcast/qui-tam-confidential-an-insiders-look-at/id1641739619?i=1000686728800