Medicare Advantage Plans Under Siege: Another Whistleblower Lawsuit

In a court decision last year in Swoben v. United Healthcare, the United States Court of Appeals for the Ninth Circuit held that an allegation – that a Medicare Advantage Plan performed a “biased” HCC-RAF retrospective medical review designed only to identify missed diagnosis codes, but not erroneously reported codes – stated a cognizable legal theory under the federal False Claims Act (“FCA”). Potential liabilities under the FCA can be draconian, with potential penalties of trebling overpayments combined with additional per claim penalties.

Now, on February 15, 2017, another federal FCA qui tam whistleblower lawsuit has been unsealed in the case of United States ex rel Benjamin Poehling v. United Healthcare Group, et. al. The complaint alleges that United fraudulently collected “hundreds of millions—and likely billions—of dollars” by claiming patients were sicker than they really were. The complaint was filed in 2011 by a private whistleblower, the Director of Finance for UnitedHealthcare Medicare & Retirement. It is 102 pages long, with over 100 more pages of exhibits, and was unsealed last week at the request of the federal Department of Justice, which partially intervened in the lawsuit against two of the defendants. The government will file its own complaint within 90 days, but has indicated that it will pursue only some of the allegations raised by the whistleblower. Nevertheless, the allegations in the complaint in Poehling are expansive and much broader than those in Swoben. Indeed, the whistleblower’s complaint reads like a laundry list of allegedly improper risk adjustment procedures – and not just “biased” risk adjustment retrospective reviews as in Swoben.