- A federal judge in Washington, D.C., has ruled that UnitedHealth Group can sue the CMS over the agency’s 2014 Medicare Advantage overpayment rule, Modern Healthcare reports.
- The rule allows CMS to treat overpayments like False Claims Act violations if insurers don’t return them within 60 days of identifying them. The aim was to cut down on Medicare fraud and upcoding.
- UnitedHealthcare filed suit against the CMS in January 2016, claiming the rule enabled insurers to be sued for negligence under the FCA, a lower bar than the recklessness standard, which is usually applied in such cases.
In ruling that UnitedHealth Group has standing to sue, U.S. District Judge Rosemary Collyer said the rule subjected Medicare Advantage payers to new legal obligations and was, therefore, open to judicial review.
“In essence, the [HHS] secretary would have the court find that the CMS rule’s insistence on ‘proactive compliance activities,’ under pain of a False Claims Act suit provable by negligence alone, is meaningless,” Collyer said. “It is not; it improves (for good reason or not) new obligations.”
A whistleblower, James Swoben, sued UnitedHealth Group in 2009, alleging the payer intentionally overbilled CMS through the Medicare Advantage program. The Justice Department recently joined the lawsuit.
As part of its lawsuit, the federal government acknowledged it is also investigating Aetna, Bravo Health, Cigna, Health Net and Humana for possible FCA violations.
Reforms under the HITECH Act and MACRA, as well as deployment of ICD-10, have increased confusion over compliance. Meanwhile, the government has intensified efforts to curb fraud and abuse. Last year, the federal government recovered more than $3.3 billion in healthcare fraud judgments and settlements.