Tighter audits of Medicare Advantage insurers could lead them to more rigorously review the patient codes that providers submit and physician-assistance companies help clinicians accept patient risk.
That could dampen an already cooled market for value-based primary care startups and digital health businesses, and increase contract disputes between insurers. insurance and companies like Oak Street Health and Agilon Health, said Jason Silberberg, a partner at Frier Levitt and colleagues’ healthcare litigation division. -Chairman of the law firm’s value-based care litigation group.
“Medicare Advantage organizations will do whatever they can to try to offset the huge losses they will incur for providers,” said Silberberg, who primarily represents providers. “One way that I can see that happening is that they have effectively pushed the fraud reporting onto the vendors.”
On February 1, the Centers for Medicare and Medicaid Services is expected to finalize the Risk Adjusted Data Validation rule, which will increase the amount of overpayments that Medicare Advantage insurers pay. must be repaid to the government. According to a report by the Medicare Payments Advisory Committee, a federal panel of experts that makes policy recommendations to Congress, issued this month, Medicare private carriers generated about $17 billion through overpayments last year.
The insurance industry is preparing to fight this policy. Industry lobby group AHIP, which declined to comment, is expected to sue if the rule is enacted as-is. Medicare Advantage heavyweights Humana, CVS Health’s Aetna and Centene have also signaled that they will fight regulation in court.
The Coalition of Public Health Plans has called for CMS to reopen the pending rule comment period from 2018. “The comments suggested that [CMS is] Michael Bagel, vice president of public policy for the Alliance of Community Health Plans, a trade group for nonprofit insurers, said the use for this rule-making is now several years out of date. years and therefore need additional and new review.
Silberberg said insurers could ask the court to uphold the rule, which would delay implementation. However, the stop-suing strategy has not been successful so far, he said. The Supreme Court dealt a blow to the industry in June when it refused to hear UnitedHealth Group’s complaint against a rule that holds Medicare Advantage insurers liable for lawsuits over the Act. Claim False when they do not refund overpayments. That has opened the door to numerous Justice Department lawsuits against Medicare Advantage providers and providers.
Silberberg said companies like Oak Street Health and Agilon Health bear the greatest financial and legal risk if the Medicare Advantage audit process changes.
Insurance companies typically pay these risk-bearing service providers a fixed monthly rate to cover the members’ expected costs. Providers who care for more severe patients and record more risk codes will receive a higher rate. As a result, these companies have a financial incentive to capture as much of the code as possible and potentially exaggerate a patient’s condition, Silberberg said. Insurance companies that sign joint savings agreements with these companies also often split bonuses when they help meet savings goals.
Agilon Health was referring to comments made by CEO Steven Sell at the JP Morgan Medical Conference this month, where he said the proposed rule does not pose a significant risk to the physician-assisted company. “The way we do it is the way the plans want it to be done. “We are driving our results through cost management,” he said. Sell says the company has a robust, peer-reviewed risk-adjustment process, and he doesn’t expect Medicare Advantage plans to change their agreements with Agilon Health about regulation. .
Sell’s tone is radically different from the amicus curiae summary Agilon Health filed in the UnitedHealth Group lawsuit last March, in which the company wrote that the recall of additional Medicare overpayments Advantage will cause “negative effects” [that] foreseeable and inevitable” for Agilon Health and other companies whose rates are determined by what CMS pays the insurers.
Oak Street Health, a primary care provider based in Chicago, declined to comment.
Fred Bentley, chief executive officer of ATI Advisory, a healthcare research and consulting firm, said the downstream impact of enhanced audit standards would not be immediately felt because contracts Contracts between insurers, providers and technology companies are usually negotiated on a three-year basis.
Bentley says many insurers include provisions in these policies that allow them to claim reimbursements that CMS determines are overpaid. When clinicians are found to be sending inappropriate patient codes, he said, insurers can also take back any bonuses issued to help them meet savings goals.
“It’s good to make sure you’re capturing all the information about the patient’s clinical condition,” says Bentley. “But that cannot be the engine of growth. This could change the calculus, or underlying economy, for those [provider] groups and where they need to focus to succeed.”
Not everyone believes that enhanced audits will stymie the Medicare Advantage industry. Mark Miller, executive vice president of healthcare at Arnold Ventures, a charity, says the ability of insurers to administratively audit claims helps reduce financial and legal risk. physical. Miller, MedPAC’s executive director from 2002 to 2017, said a more effective approach would be to recover overpayments that MedPAC had discovered.
“If people were serious about monitoring Medicare Advantage, there would be about $20 billion annually going out the door as identified by MedPAC,” Miller said. “The [Health and Human Services] The secretary has authority to seize, and Congress can legislate and recapture. But that is not considered positively.”
Insurers and providers could get relief if the legal standard for False Claims Act cases is raised, as CMS suggested last month. Under the agency’s draft plan, Medicare Advantage insurers would be held liable for False Claims Act violations when they “willfully” submit inappropriate claims , a barrier to regulators higher than the current standard of negligence.
That would make it harder for the Justice Department to sue insurance companies and Medicare Advantage providers for not returning overpayments, Silberberg said. “Perhaps the government is thinking, ‘Well, we’re going to hit them with a hammer on this side, and we’re going to give them some bandages on the other,’” he said.
