Medicare Advantage Enforcement: DOJ Advances New Theories Based on Retrospective Chart Reviews

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Over the past two months, DOJ has filed complaints-in-intervention in two FCA cases premised on allegedly fraudulent diagnosis codes submitted to CMS as a result of retrospective chart reviews. These cases demonstrate how DOJ has begun to explore new legal theories that articulate a narrower view on the legality of retrospective chart reviews designed to add diagnosis codes.

CMS has repeatedly reiterated that adding codes through retrospective chart reviews is permissible in certain circumstances. However, CMS regulations provide only high-level parameters for how chart reviews should be structured, and CMS has never issued any clear sub-regulatory guidance. As a result, Medicare Advantage Organizations and Medicare Advantage providers have been left to piece together the government’s expectations by looking to DOJ’s ongoing enforcement actions.