UnitedHealth Group seeks dismissal of whistleblower lawsuit

July 15--UnitedHealth Group asked Friday for the dismissal of a whistleblower lawsuit that alleges the company wrongly received higher payments from Medicare based on false information about enrollee health problems that the insurer could have corrected.

In a federal court filing, the Minnetonka-based insurer said companies that sell "Medicare Advantage" plans -- a private alternative to the traditional government health insurance program -- are not required to validate the accuracy of diagnostic data that is submitted by health care providers.

The government itself does not validate such information when administering the traditional Medicare program, UnitedHealth Group argues, adding that the federal statute calls for Medicare Advantage (MA) plans to be paid based on an "apples-to-apples comparison of the health status" of enrollees in the private and traditional branches of the program.

The Friday filing comes in a lawsuit initially filed by a California whistleblower, which the federal government joined earlier this year.

"The Department of Justice (DOJ) belatedly has entered a decadelong payment policy discussion between Medicare Advantage plans and the Centers for Medicare & Medicaid Services (CMS)," the company said in its filing. "DOJ is flat wrong. MA plans are not, and cannot be, required to undertake the affirmative steps DOJ suggests."

Beyond challenging the government's theory of the case, UnitedHealth Group says the lawsuit should be dismissed because it fails to state a claim.

UnitedHealth Group is the parent company of UnitedHealthcare, the nation's largest health insurer. The company also is the nation's largest provider of Medicare Advantage plans, where seniors opt to receive Medicare benefits through a private health plan.

The government pays Medicare Advantage plans a per-member, per-month fee that is increased for patients who have a greater risk of needing costly payments.

In March, the federal government joined the lawsuit from the California whistleblower, who alleged that UnitedHealthcare scoured medical records for data that could boost these risk adjustment scores but didn't correct previously submitted diagnostic data that was wrong. Had the company corrected the wrong data, UnitedHealthcare would have received less money, the whistleblower alleged.

In February, the federal government joined a similar whistleblower lawsuit from Benjamin Poehling, a former UnitedHealth Group executive in the Twin Cities. In a subsequent filing in Poehling's case, the federal government alleged that UnitedHealth Group wrongly received at least $1 billion in risk adjustment payments from Medicare.

UnitedHealth Group is expected to soon file a motion to dismiss in the Poehling case, as well.

In the Friday court filing, UnitedHealth Group said it was not addressing what it called the "central shortcomings" with the government's case -- whether UnitedHealth Group was required to validate diagnostic data -- because the question is the subject of a separate lawsuit. Instead, the company focused on arguments that the case should be dismissed because it failed to state a claim "for at least five reasons."

The complaint fails to allege company officials who signed attestations related to the risk adjustment data believed they were submitting false information, UnitedHealth Group argues. In fact, the complaint doesn't even mention who at the company signed the attestations, the insurer says.

In addition, UnitedHealth Group argues that the complaint doesn't show the attestations were material to the government's decision to pay.

"That silence speaks loudly," the insurer says in its filing. "This case has been pending for nearly a decade. ... Yet DOJ does not claim (nor could it) that CMS ever has refused to make risk adjustment payments to United as a result."

UnitedHealth Group says the case should be dismissed because it's based on a "reverse false claims" theory that was previously waived by the court. Some claims are untimely because they go back more than 10 years, the company says, adding that the case "fails to identify with particularity" each of the corporate entities named as defendants.

The government's complaint "fails properly to plead two elemental aspects of its claims: That United knowingly submitted false attestations, and that the government would have refused to pay United's claims if it had know of the truth," the company's filing says.

"Those failings are not careless errors," the filing says. "Rather, they reflect the broader problem with the DOJ's case, which is that it has attempted to turn a well-known, good-faith disagreement about the meaning of regulatory and statutory language into a False Claims Act suit."

Twitter: @chrissnowbeck

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