United States ex rel. Silingo v. Wellpoint, Inc.

904 F.3d 667
CourtCourt of Appeals for the Ninth Circuit
DecidedJuly 9, 2018
DocketNo. 16-56400
StatusPublished
Cited by83 cases

This text of 904 F.3d 667 (United States ex rel. Silingo v. Wellpoint, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States ex rel. Silingo v. Wellpoint, Inc., 904 F.3d 667 (9th Cir. 2018).

Opinion

GOULD, Circuit Judge:

Qui tam relator Anita Silingo appeals the dismissal of her False Claims Act suit against several Medicare Advantage organizations. We reverse in part, affirm in part, and remand.

*672I

Medicare Advantage is a modern adaptation of the momentous 1960s-era program. Traditional Medicare uses a fee-for-service payment model, whereby the more services physicians perform, the more money they earn. After Medicare was enacted, however, experts came to realize that this payment structure encourages healthcare providers to order more tests and procedures than medically necessary. See Thomas L. Greaney, Medicare Advantage, Accountable Care Organizations, and Traditional Medicare: Synchronization or Collision? , 15 Yale J. Health Pol'y, L. & Ethics 37, 38, 41 (2015).

Medicare Advantage seeks to improve the quality of care while safeguarding the public fisc by employing a "capitation" payment system. Capitation means an amount is paid per person. Capitation , Black's Law Dictionary (10th ed. 2014). Under Medicare Advantage's capitation system, private health insurance organizations provide Medicare benefits in exchange for a fixed monthly fee per person enrolled in the program-regardless of actual healthcare usage. These organizations pocket for themselves or pay out to their enrollees' providers the difference between their capitation revenue and their enrollees' medical expenses, creating an incentive for the organizations to rein in costs. See Patricia A. Davis et al., Cong. Research Serv., R40425, Medicare Primer 20 (2017), https://fas.org/sgp/crs/misc/R40425.pdf.

Unfortunately, human nature being what it is, Medicare Advantage organizations also have some incentive to improperly inflate their enrollees' capitation rates, if these organizations fall prey to greed. By design, Medicare Advantage is supposed to compensate these organizations for expected healthcare costs, paying "less for healthier enrollees and more for less healthy enrollees." Establishment of the Medicare Advantage Program, 70 Fed. Reg. 4588, 4657 (Jan. 28, 2005). So capitation rates are based largely on an individual's "risk adjustment data," which reflect several factors that can affect healthcare costs. See 42 U.S.C. § 1395w-23(a)(1)(C)(i) ; 42 C.F.R. § 422.308(c). Chief among these data are individuals' medical diagnoses. See Policy and Technical Changes to the Medicare Advantage and the Medicare Prescription Drug Benefit Programs, 74 Fed. Reg. 54,634, 54,673 (Oct. 22, 2009). Medicare Advantage organizations obtain diagnosis codes from healthcare providers after these providers have had medical visits with plan enrollees. See CMS, Pub. No. 100-16, Medicare Managed Care Manual , ch. 7, § 40 (2014), https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/mc86c07.pdf. In turn, Medicare Advantage organizations report the diagnosis codes that they receive to the Centers for Medicare and Medicaid Services ("CMS") for use in the risk adjustment model that is the key to calculation of capitation rates. Id. The risk adjustment model deems a Medicare Advantage enrollee to be as healthy as the average Medicare beneficiary unless CMS receives updated diagnosis codes for the enrollee every year. See id. §§ 20, 70, 70.2.5, 120.2.4.

With data for millions of people being submitted each year, CMS is unable to confirm diagnoses before calculating capitation rates. Instead, the agency accepts the diagnoses as submitted, and then audits some of the self-reported data a few years later to ensure that they are adequately supported by medical documentation. See 42 C.F.R. §§ 422.310(e), 422.311 ;

*673Contract Year 2015 Policy and Technical Changes to the Medicare Advantage and the Medicare Prescription Drug Benefit Programs, 79 Fed. Reg. 1918, 2001 (Jan. 10, 2014). These audits have revealed excess payments for unsupported diagnoses steadily increasing over the last decade, reaching an estimated $16.2 billion -nearly ten cents of every dollar paid to Medicare Advantage organizations-in 2016 alone. See James Cosgrove, U.S. Gov't Accountability Office, GAO-17-761T, Medicare Advantage Program Integrity: CMS's Efforts to Ensure Proper Payments and Identify and Recover Improper Payments 1 (2017), https://www.gao.gov/assets/690/685934.pdf; James Cosgrove, U.S. Gov't Accountability Office, GAO-13-206, Medicare Advantage: Substantial Excess Payments Underscore Need for CMS to Improve Accuracy of Risk Score Adjustments 9-10 (2013), https://www.gao.gov/assets/660/651712.pdf.

To combat the "incentive for [Medicare Advantage] organizations to potentially over-report diagnoses," Medicare regulations require risk adjustment data to be produced according to certain best practices. Contract Year 2015 Policy and Technical Changes to the Medicare Advantage and the Medicare Prescription Drug Benefit Programs, 79 Fed. Reg. 1918, 2001 (Jan. 10, 2014). Every diagnosis code submitted to CMS must be based on a "face-to-face" visit that is documented in the medical record. Medicare Managed Care Manual , ch. 7, §§ 40, 120.1.1. Medical records must be validated by qualifying "physician/practitioner signatures and credentials." Policy and Technical Changes to the Medicare Advantage and the Medicare Prescription Drug Benefit Programs, 75 Fed. Reg. 19,678, 19,743 (Apr. 15, 2010). Further, electronic medical records must meet special signature requirements and use software that is "protected against modification." CMS, Pub. No. 100-08, Medicare Program Integrity Manual , ch. 3, § 3.3.2.4 (2018), https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/PIM83c03.pdf.1

Medicare regulations also establish several data certification requirements.

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904 F.3d 667, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-ex-rel-silingo-v-wellpoint-inc-ca9-2018.