Pandemic delays federal probe into Medicare Advantage health plans

Reviewed by James Ives, M.Psych. (Editor)Apr 8 2020

Federal health officials, citing a need to focus on the COVID-19 pandemic, have temporarily halted some efforts to recover hundreds of millions of dollars in overpayments made to Medicare Advantage health plans.

The Centers for Medicare & Medicaid Services says the decision will allow insurers and the agency to "focus on patient care," and will last "until after the public health emergency has ended."

Critics aren't convinced that's a wise idea.

"Some loosening of regulations during a crisis is necessary. But is this an abdication of oversight?" asked David Lipschutz, associate director and a senior policy attorney with the Center for Medicare Advocacy. "This is a serious concern we will have to grapple with at some point."

Medicare Advantage plans are offered by private health insurers under contracts with Medicare. They treat more than 24 million Americans, most of them seniors at a relatively high risk of serious health complications from the pandemic.

The added costs these health plans will shoulder as a result remains unclear. Several plans have announced they will waive copayments for COVID-19 testing and care. In an April 3 letter to CMS Administrator Seema Verma, the industry advocacy group Better Medicare Alliance asked the agency to "monitor the unanticipated costs incurred as a result of the COVID-19 crisis, and work with Congress to put in place appropriate financial protections, such as excess loss protection for Medicare Advantage."

CMS on Monday announced a 1.66% rate increase for the plans in 2021.

The trade group applauded CMS' decision to relax auditing and other paperwork requirements. The CMS audits are designed to curb overcharging by Medicare Advantage plans, to which the government pays more than $200 billion a year. The audits are years behind schedule, largely because of industry opposition.

In July 2019, Kaiser Health News reported that the government had overpaid Medicare Advantage plans by nearly $30 billion in the past three years alone. In addition, as many as 20 whistleblower lawsuits - the most recent filed late last month by the Justice Department against industry giant Anthem — have accused health plans of ripping off Medicare by exaggerating how sick their patients were.

The coronavirus emergency puts a unique strain on Medicare Advantage plans. Unlike standard Medicare, which pays medical providers for each service they render, Medicare Advantage plans are paid based on the health of members. That means they receive higher rates for sicker patients and less for those in robust health.

The insurers assess the health status of each member through face-to-face medical visits, which have been sharply curtailed by the crisis. The industry also argues that during the COVID-19 emergency, health plans and their doctors have little time to process paperwork.

"There's a recognition that providers need to be focused on treating the epidemic," said Thomas Kornfield, a senior consultant with the health care consulting firm Avalere Health and a former CMS official. Asking doctors and insurers to prepare medical records for review "when they face an unprecedented situation is not a good idea," he said.

Still, concerns that some plans overcharge Medicare have been raised for years. In December, the Health and Human Services inspector general linked alleged schemes to $6.7 billion in questionable payments during 2017.

The March 26 Justice Department civil case accuses Anthem, whose holdings include several large Blue Cross Blue Shield plans, of illegally billing Medicare for diseases that were not supported by medical records. Anthem received more than $112 million in improper payments for 2015, according to the government.

Anthem denied wrongdoing. "We are confident that our health plans and associates have complied with Medicare Advantage regulations," the company said in a statement.

The whistleblower cases have emerged as a primary tool for holding health plans accountable largely because the CMS audit program has foundered amid fierce protests from the industry. The industry argues the audits, called risk adjustment data validation, or RADV, are flawed and the results unreliable.

The controversy has resulted in long delays in conducting audits and recouping overpayments. CMS officials say they have yet to complete audits for 2011, 2012 and 2013.

That's years behind schedule. CMS officials had expected to finish the 2011 audits by the end of 2016, for instance. (KHN is suing CMS under the Freedom of Information Act to compel public release of the audit findings. The case is pending in federal court in San Francisco.)

CMS said it would continue reviewing some audit materials but suspend the collection of records for reviews of 2015 payments and beyond until "the public health emergency has ended."

The CMS action also temporarily waives the collection of some data the government uses to rate the quality of health plans and patient satisfaction with them. Medicare uses this information to rate the health plans from one to five stars.

"CMS is committed to allowing health plans, providers, and physician offices to focus on caring for Medicare beneficiaries during this public health emergency and not put staff at health plans at risk by requiring travel or collection of data in offices that are overwhelmed by patients needing care," the agency said.

CMS said it is "reprioritizing" its enforcement of regulations to focus on problems that could pose a danger to patients, such as "lack of access to critically needed health services or prescription drugs" and "complaints alleging infection control concerns, including COVID-19 or other respiratory illnesses."