Ursula Taylor Discusses Implications of UnitedHealthcare Ruling with Law360

Partner Ursula Taylor was recently interviewed by Law360 for a story titled “New FCA Ruling Puts Medicare Advantage Plans on Alert.” You can read the full article here (subscription required). As Taylor commented to Law360, “‘A successful ruling [in the affirmative Administrative Procedures Act (APA) case by UnitedHealthcare (UHC)] would take significant wind out of the DOJ’s sails in its effort to prosecute FCA claims for Medicare Advantage risk adjustment billing practices.’”

As Taylor further describes, UHC makes two core arguments in its litigation against the Department of Health and Human Services (HHS), both of which are important to FCA litigations against health insurers concerning Medicare Advantage risk adjustment billing:

First, UHC argues that HHS’ 2014 overpayment rule improperly applies a negligence standard to the question of whether a Medicare Advantage Organization (MAO) acted with the requisite knowledge in submitting inaccurate diagnosis coding to the federal government. A ruling favorable to UHC on this issue would take an arrow out of the DOJ’s quiver in establishing the standard of knowledge applicable to MAOs when alleging and proving that MAOs “knowingly” retained an overpayment for risk adjustment billing.

Second, UHC argues that HHS violated a requirement of the Medicare Act (the requirement of “actuarial equivalence”) in formulating the procedure for determining how much money may have been overpaid. With respect to this second issue, UHC essentially argues that HHS does not adjust for the error – and associated dollars – that are baked into the amounts paid to MAOs in the first instance, yet applies a different standard in requiring the return of overpayments. By UHC’s argument, this means MAOs are forking over too much back to the government in the form of “overpayments.”  A favorable ruling for UHC on this second issue would mean that HHS is performing the calculations wrong. At a minimum, a favorable ruling in UHC’s APA case on this issue would provide a significant blow to the DOJ’s damage calculations in the Poehling action.