Medicare Advantage Plan Highlights Distinction for FCA Purposes between Clinically Inaccurate Diagnoses and Clinically Accurate Diagnoses that Allegedly Violate Subregulatory Guidelines

Lexology October 6, 2022
Bass Berry & Sims PLC

In a September 2022 filing in U.S. ex rel. Osinek v. Kaiser Permanente, the Kaiser Permanente consortium defendants (Kaiser) highlighted the distinction between clinically inaccurate diagnoses (factual falsity) and clinically accurate but incorrectly coded diagnoses (legal falsity) and its relevance in False Claims Act (FCA) actions.

This distinction can be instructive and useful from an FCA defense perspective for Medicare Advantage plans and providers. The court’s treatment of this argument will be interesting to follow in light of the Supreme Court’s denial of certiorari in UnitedHealthcare Ins. Co. v. Becerra in which UnitedHealthcare challenged the validity of the Medicare Part C Overpayment Rule and as Medicare Advantage plans analyze their obligations to report and return overpayments under the revived rule....

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