Managed Care Plans Face Increase In Compliance Investigations, Attorneys Say

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By James Swann  

 

Managed care plans serving Medicare and Medicaid beneficiaries are increasingly being targeted by the federal government for compliance-related issues, two attorneys said in a webinar Aug. 29.

There has been a dramatic uptick in managed care plans serving Medicaid beneficiaries, creating substantial compliance risk, James G. Sheehan, chief integrity officer for the New York City Human Resources Administration, said during the Bloomberg BNA-sponsored webinar.

“Managed care will be more open to the plaintiff's bar, and more qui tams will be coming,” Sheehan said, referring to an expected increase in whistleblower lawsuits targeting managed care plans.

He said the Centers for Medicare & Medicaid Services is moving in the direction of requiring managed care plans to certify the accuracy and completeness of their data, which he said was an impossible task.

“There is no data repository that is completely accurate and truthful,” Sheehan said.

“However, to get paid, you have to certify data as accurate and truthful, and when it's found not to be, you've got a False Claims Act issue,” he said.

Spay Case

Sheehan cited a recent case, United States ex rel. Spay v. CVS Caremark Corp., E.D. Pa., No. 2:09-cv-04672-RB, 12/20/12, in which the government said not having a compliance program to certify the accuracy and completeness of data constituted reckless disregard (83 HCDR, 4/30/13).

Spay, a pharmacist who did audits for CVS pharmacy interactions, alleged that CVS submitted improper prescription drug event claims to CMS.

Sheehan said the language in the Spay ruling places new demands on what managed care plans have to do to certify their data, and he said it applies not only to the managed care plan but also to subcontractors.

Additional Risks

David M. Deaton, an attorney with O'Melveny & Myers LLP, Los Angeles, highlighted some additional compliance risks facing managed care plans, including certifications that the organization has no suspicions of fraud and abuse activity.

“No organization in the country can say it has no suspected fraud and abuse, but these certifications are conditions of payment,” Deaton said.

A false certification can lead to future FCA issues, he said.

Deaton said managed care plans can take several steps to reduce their exposure to FCA cases, including enacting a robust compliance program and staying abreast of compliance guidance from the Department of Health and Human Services Office of Inspector General.

Additionally, managed care plans should regularly review data submitted by providers and employers.

Sheehan said managed care plans should also review CMS provider manuals that discuss compliance issues and keep up to date on industry trends.