Fiscal Year 2022 saw the second highest number of settlements in qui tam history, with the DOJ collecting more than $2.2 billion in fraud claims. In general, cases in which the government intervenes and helps with the investigation tend to have much higher collection rates and settlements than the cases they do not. However, the Department of Justice declines to intervene more often than not.
When filing your qui tam case, some of the best news you can hear is that the Department of Justice has decided to follow up on your claim, and will be bringing the full might of federal investigation to bear on the situation. DOJ intervention offers the best possible chance of uncovering the extent of the wrongdoing, and can point towards a higher payout for you as the whistleblower.
The DOJ recently reported intervening in a number of significant cases involving Medicare Part C, or Medicare Advantage, fraud. Here, we take a closer look at each of those cases.
Medicare Part C, also known as Medicare Advantage, involves the payment of public taxpayer funds to private insurers. Through Medicare Advantage, patients who qualify for Medicare are able to receive their benefits through private insurers. These private insurance companies are paid certain amounts based on a patient’s risk score. When an insurer purposefully inflates a patient’s risk score, or misreports any element of the medical care that they receive, they are committing healthcare fraud.
Medicare Advantage fraud is both particularly common, as well as particularly hard to spot, because of the self-certification that often occurs between a private insurer and the claiming of Medicare funds. Excessive billing, ordering medically unnecessary tests, intentional misdiagnosis, and more, are all examples of ways that insurance companies may seek to drain Medicare funds while providing substandard care to patients.
In FY 2022, the Department of Justice intervened in several Medicare Part C fraud cases. The following insurance companies were involved in DOJ False Claims Act investigations.
Cigna Corp
The complaint against Cigna alleged that the insurer reported diagnoses codes for its Medicare Advantage members based solely on reports made by vendors who conducted in-home assessments. The conditions reported, it claimed, were not based on ordered tests or existing treatments.
In fact, the nurse practitioners and health care assistants who conducted these at-home visits were allegedly prohibited by Cigna from ordering the correct testing or treatments for any of the patients’ supposedly serious conditions being reported back to Medicare. This insurance fraud allowed Cigna to bill Medicare for high amounts of funding, while also denying its older members the ability to be correctly seen, diagnosed, and treated as they deserved.
U.S. Attorney Damian Williams said about the case against Cigna, “As alleged, CIGNA obtained tens of millions of dollars in Medicare funding by submitting to the Government false and invalid diagnoses for its Medicare Advantage plan members. CIGNA knew that, under the Medicare Advantage reimbursement system, it would be paid more if its plan members appeared to be sicker. This Office is dedicated to holding insurers accountable if they seek to manipulate the system and boost their profits by submitting false information to the Government.”
UnitedHealth Group
UnitedHealth Group is the largest Medicare Advantage Organization in the United States, offering more than 50 Medicare Advantage and Drug Prescription plans. As such, they regularly receive millions in taxpayer-funded payments. The amount of these payments can fluctuate, and is tied to risk assessment scores for each Medicare Advantage payment. The United States government intervened in a lawsuit brought by whistleblower James Swoben, a former employee of Senior Care Action Network (SCAN) Health Plan and a risk management consultant. The lawsuit alleged that UnitedHealth made a pattern of inflating their patients risk adjustment scores in order to receive higher payouts under Medicare Advantage.
Independent Health Corporation
The case with Independent Health Corporation alleged that the insurance company submitted medically unsupported diagnoses codes in order to inflate the payments that they receive from Medicare Advantage to support their older patients’ care.
Deputy Assistant Attorney General Michael D. Granston of the Justice Department’s Civil Division said about the Independent Health Corporation case, “The Medicare Advantage Program relies on accurate information about the health status of enrollees to ensure that they receive appropriate treatment and that participating health plans receive proper compensation for the services they actually provide. The department will continue to hold accountable health plans or providers that report unsupported diagnoses to inflate risk adjustment payments.”
Elevance Health (formerly Anthem)
As another large provider of Medicare Advantage plans, Anthem put a system in place to verify the submission of their patients’ risk codes called a “retrospective chart review” through a third-party vendor called Medi-Connect. However, this supposed “oversight activity” done in order to “help ensure that the [diagnosis] codes have been reported accurately” in fact led to rampant fraud and misreporting.
The qui tam complaint against Anthem alleged that when Medi-Connect data differed from Anthem’s submissions to CMS, Anthem kept the reported data that gave them a higher payout instead of correcting their wrongful diagnostic codes. In this way, Anthem knowingly misreported and failed to correct false information in order to keep their Medicare Advantage payouts, which regularly totaled over $100 million per year, as high as possible.
Kaiser Permanente
The Kaiser Permanente Consortium was involved in six counts of fraud against the taxpayer that involved allegations of inflated risk scores for its Medicare Advantage patients. Under current policy, Medicare Advantage claims only have to be submitted for outpatient medical contact when conditions also require in-person care during the service year.
However, in order to increase reimbursement rates, Kaiser allegedly pressured its physicians to adjust patient medical records in the months and years after they were seen in person in order to artificially adjust their risk scores. These additions involved increasing risk assessments for hundreds of older patients so that the insurance group would receive higher Medicare Advantage payments, without ever increasing the frequency or value of the care that patients received under the scam.
When the DOJ intervenes in a qui tam complaint, they are able to bring considerable firepower to the process of discovery and investigation. DOJ subpoenas are taken extremely seriously, and may be able to uncover extended instances of fraud or deceit past what a whistleblower can initially name on their own. They may be able to help uncover fraud that spans across several states using federal jurisdiction, or across several branches of a large corporation. They may also be able to connect the dots from several whistleblower complaints, and build a larger case than what was first presented.
Having the Department of Justice on your side during a qui tam complaint can lead to a higher payout for the whistleblower, as well as greater protection for the whistleblower and their anonymity when pursuing a complaint. More money recovered by the taxpayer means a higher amount is available for the whistleblower’s reward. This is likeliest when the Department of Justice intervenes in investigating a qui tam case.
If the Department of Justice declines to intervene in your case, all hope is not lost. With an experienced whistleblower law firm behind you, you may be able to pursue the case on your own, taking the claim all the way through discovery into mediation, and even to trial if necessary.
One positive element to the Department of Justice deciding not to intervene is that, in a successful case, the whistleblower can receive a higher percentage of the overall claim, all the way up to the maximum 30% of the total recovery. This is done in recognition of the substantial personal role that the whistleblower and their firm likely took in following through on a case to the end.
How does the Department of Justice decide what claims they will investigate further? And how can you ensure that you have put forward the strongest case possible to convince them to do so? One key element is choosing the right qui tam law firm. The law office of Tycko & Zavareei LLP includes several former DOJ officials who have unique insight into what their former colleagues may be looking for when they consider whether or not to intervene. Furthermore, our entire legal team understands what kinds of proof will be the most likely to interest federal investigators.
The law office of Tycko & Zavareei LLP can help you build the strongest possible claim and present the evidence clearly, concisely, and in language that is couched in terminology that the DOJ needs to receive. Don’t let your valuable tip go to an inexperienced or unprofessional firm and waste your chance at a substantial payout. Remember that once information has been reported, it loses any future value for a whistleblower payout.
You only have one chance at making your disclosure count. Contact the law office of Tycko & Zavareei LLP and let us help you build the strongest case possible. A consultation is complimentary and confidential.