Lexology November 19, 2021
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, as recently as August 2021, that adding codes through retrospective chart reviews is permissible in certain circumstances. See Letter from Chiquita Brooks-LaSure, Administrator, CMS, to Christi Grimm, Principal Deputy Inspector General, OIG (Aug. 20, 2021) reprinted in HHS-OIG, Some Medicare Advantage Companies Leveraged Chart Reviews and Health Risk Assessments to Disproportionately Drive Payments, at 21. However, CMS regulations...
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