Tougher audits of Medicare Advantage insurers may cause them to extra stringently evaluation the affected person codes suppliers submit and the physician-enablement firms that assist clinicians tackle affected person danger.
That could dampen the already cool marketplace for value-based major care startups and digital well being companies, and intensify contract disputes between insurers and corporations similar to Oak Street Health and Agilon Health, mentioned Jason Silberberg, a accomplice at Frier Levitt’s healthcare litigation part and co-chair of the regulation agency’s value-based care litigation group.
“Medicare Advantage organizations are going to do whatever they can to try and offset the major losses they’re going to take onto the providers,” mentioned Silberberg, who primarily represents suppliers. “One way I could perceive that happening is them effectively pushing the fraud narrative on the providers.”
On Feb. 1, the Centers for Medicare and Medicaid Services is slated to finalize the Risk Adjustment Data Validation rule, which might improve the quantity of overpayments Medicare Advantage insurers should return to the federal government. Private Medicare carriers generated an estimated $17 billion by way of overpayments final yr, in keeping with a report the Medicare Payment Advisory Commission, a federal professional panel that makes coverage suggestions to Congress, issued this month.
The insurance coverage trade is gearing as much as fight the policy. Industry lobbying group AHIP, which declined to remark, reportedly would sue if the rule had been enacted as-is. Medicare Advantage heavyweights Humana, CVS Health’s Aetna and Centene have additionally signaled they’d struggle the regulation in courtroom.
The Alliance of Community Health Plans referred to as on CMS to reopen the remark interval on the rule, which has been pending since 2018. “The comments that [CMS is] using for this rulemaking are now several years outdated and therefore require additional review and new consideration,” mentioned Michael Bagel, affiliate vice chairman of public coverage for the Alliance of Community Health Plans, a commerce group for nonprofit insurers.
Insurers may ask a courtroom to remain the regulation, which might delay implementation, Silberberg mentioned. But the sue-to-stop technique has not been profitable up to now, he mentioned. The Supreme Court dealt the trade a blow in June when it declined to hear UnitedHealth Group’s challenge to a regulation that makes Medicare Advantage insurers answerable for False Claims Act lawsuits after they fail to return overpayments. That opened the door to extra Justice Department lawsuits towards Medicare Advantage carriers—and suppliers.
Companies similar to Oak Street Health and Agilon Health bear the best authorized and monetary danger if the Medicare Advantage audit course of modifications, Silberberg mentioned.
Insurers usually pay these risk-bearing suppliers flat, month-to-month charges to cowl members’ anticipated bills. Providers that handle sicker sufferers, and doc extra danger codes, obtain increased capitated charges. These firms due to this fact have a monetary incentive to capture as many codes as possible, and probably to magnify affected person circumstances, Silberberg mentioned. Insurers that ink shared financial savings agreements with these firms typically additionally dispense bonuses after they assist attain financial savings targets.
Agilon Health referred to CEO Steven Sell’s feedback on the J.P. Morgan Healthcare Conference this month, the place he mentioned the proposed rule doesn’t pose a major danger to the physician-enablement firm. “The way we do it is the way plans want it to be done. We’re driving our results based on managing costs,” he mentioned. Sell mentioned that the corporate has a robust, peer-reviewed danger adjustment course of, and he doesn’t count on Medicare Advantage plans to change their offers with Agilon Health over the regulation.
Sell’s tone was a stark departure from the amicus curiae temporary Agilon Health submitted within the UnitedHealth Group case final March, during which the corporate wrote that clawing again extra Medicare Advantage overpayments would trigger “negative impacts [that] are foreseeable and inevitable” for Agilon Health and different firms whose capitation charges are decided by what CMS pays insurers.
Oak Street Health, a Chicago-based major care supplier, declined to remark.
But the downstream affect of strengthened audit requirements wouldn’t be felt instantly as a result of contracts between insurers, suppliers and know-how firms are usually negotiated on a three-year foundation, mentioned Fred Bentley, managing director of ATI Advisory, a healthcare analysis and advisory agency.
Many insurers embrace clauses in these contracts that permit them to reclaim reimbursements that CMS determines had been overpaid, Bentley mentioned. When clinicians are been discovered to have submitted improper affected person codes, insurers can also recoup any bonuses granted for serving to them obtain financial savings objectives, he mentioned.
“It’s a good thing to make sure that you’re capturing all that information about your patients’ clinical conditions,” Bentley mentioned. “But that cannot be the growth driver. This could change the calculus, or the underlying economics, for these [provider] groups and where they need to focus to be successful.”
Not everyone seems to be satisfied strengthened audits would hamper the Medicare Advantage trade. Insurers’ potential to administratively attraction audits reduces the monetary and authorized dangers, mentioned Mark Miller, government vice chairman of healthcare at Arnold Ventures, a philanthropy. A extra impactful strategy can be recouping the overpayments MedPAC already uncovered, mentioned Miller, who was MedPAC’s government director from 2002 to 2017.
“If people were serious about Medicare Advantage oversight, there is like $20 billion annually going out the door that MedPAC has identified,” Miller mentioned. “The [Health and Human Services] secretary has the authority to capture, and Congress could legislate and recapture. But that is not actively being considered.”
Insurers and suppliers may acquire some aid if the authorized commonplace for False Claims Act circumstances had been raised, as CMS proposed final month. Under the company’s draft plan, Medicare Advantage insurers can be answerable for False Claims Act violations after they “knowingly” submit improper claims, a better bar for regulators than the present commonplace of negligence.
That would make it more durable for the Justice Department to sue Medicare Advantage insurers and suppliers for failing to return overpayments, Silberberg mentioned. “Maybe the government’s thinking, ‘Well, we’re going to hit them with the hammer on this side, and we’re going to give them a little bit of a band-aid on the other side,’” he mentioned.