Bradley attorney Brad Robertson was quoted about a recent decision that vacated a 2014 CMS rule that UnitedHealthcare said resulted in either underpayment for Medicare Advantage insurers or insurers being subject to reverse False Claims Act (FCA) liability for failure to return overpayments. One reason Judge Rosemary Collyer invalidated the 2014 rule in UnitedHealthcare v. Azar was that it imposed a different standard on Medicare managed care insurers to identify and report overpayments than that imposed by the False Claims Act.
The 2014 rule established that Medicare managed care organizations could be at risk under the FCA if they didn’t use reasonable diligence that included at least proactive compliance activities done in good faith, which Judge Collyer found to be a negligence standard. The FCA, however, imposes a stricter standard for liability, requiring proof that an entity knew a claim was false or acted in reckless disregard or deliberate ignorance of the truth of the information submitted to support the claim.
After the decision invalidating the government’s guidance, there is now a question as to when an overpayment has been identified, according to Robertson. This issue is further complicated because the identification of the overpayment starts the 60-day clock under the Affordable Care Act in which identified overpayments must be returned, he said. “This is a blow to the government in any case where they’re alleging somebody negligently failed to identify an overpayment,” Robertson explained.
So in a case where an insurer has not actually identified an overpayment but the government alleges it should have known about one, the ruling "gives the insurer more arguments than it had before in its defense," Robertson said.
Robertson was quoted in “UnitedHealthcare Wins Medicare Managed Care Overpayment Suit,” which appeared in Bloomberg Law on September 7, 2018, and in “More Medicare Advantage upcoding could follow court ruling,” which appeared in Modern Healthcare on September 12, 2018.