Recent MA Coding Complaints Signal DOJ’s ‘Evolving Expectations’

by Lauren Flynn Kelly

 

The risk adjustment system used to pay Medicare Advantage plans continues to face intensifying scrutiny from the federal government, with the Dept. of Justice (DOJ) intervening in multiple False Claims Act (FCA) complaints and the HHS Office of Inspector General focusing on retrospective chart reviews and high-risk diagnosis codes. Now, attorneys say health care providers should be on high alert as well. While prior DOJ complaints-in-intervention have focused largely on MAOs conducting “one-way” chart reviews, more recent lawsuits focus on the use of “addenda” — information retroactively added to a patient’s medical record — which one law firm says indicates a new area of scrutiny. 

 

DOJ Probes Kaiser, Independent Health 

• According to two recent FCA complaints in which the government intervened, Kaiser Permanente and Independent Health Association allegedly instructed providers to revise charts with addenda up to 12 months after the patient encounter and often without the patient knowing. 
• Kaiser in November 2020 agreed to pay the federal government nearly $6.4 million to resolve similar allegations made against Group Health Cooperative (GHC), which Kaiser acquired in 2017. 

DOJ Indicates Interest in Addenda 

• Members of Sidley Austin LLP’s FCA practice in a Nov. 19 blog post suggested the use of addenda is key. Whereas previous suits have centered on one-sided chart reviews, the more recent complaints “demonstrate how DOJ has begun to explore new legal theories that articulate a narrower view on the legality of retrospective chart reviews designed to add diagnosis codes.” 
• DOJ “appears skeptical that a treating practitioner could have sufficiently documented a condition affecting patient care, treatment, or management while contemporaneous coding practices did not result in the submission of an associated diagnosis code,” they wrote. The authors advised MAOs and their providers to “consider reassessing the scope of their retrospective chart reviews to conform with DOJ’s evolving expectations.” 
• CMS itself has said, as recently as August 2021, that adding codes through retrospective chart reviews is allowed in certain circumstances, pointed out Sidley attorneys. 

Suits Have Lessons for Providers 

• This and other similar FCA suits offer a few key takeaways for the provider community, such as maintaining “diligent documentation practices” to “ensure that medical records support claims and risk-adjustment data” submitted to MAOs and paying attention to any external or internal audit findings that “signal the potential receipt of overpayments,” observed attorneys from Polsinelli in a JD Supra blog post. 
• “Training should focus on compliant documentation and coding practices and be carefully crafted to ensure that providers and coders are not swayed to up-code diagnoses codes, for example.” 

From Radar on Medicare Advantage