By Jeff Overley
Law360 (August 5, 2020, 9:39 PM EDT) -- Cigna Corp. overbilled Medicare Advantage by more than $1.4 billion by persuading nurses to diagnose policyholders with exaggerated medical problems, according to a newly unsealed suit that joins a growing list of False Claims Act cases targeting Medicare Advantage insurers. The whistleblower suit made public Tuesday in New York federal court alleges that from 2012 to 2017 a company division called Cigna-HealthSpring billed for medical conditions that "did not exist, were not recorded in any medical records and were not based on any clinically reliable information." Whistleblower Robert A. Cutler, an employee of Cigna contractor Texas Health Management LLC, filed the complaint under seal in 2017. Whistleblower complaints under the FCA are usually unsealed only after the U.S. Department of Justice has announced whether it will intervene in the case. An order in February from U.S. District Judge Kenneth Karas said that the DOJ had declined to intervene in some of the allegations and would not intervene for the time being in the remaining allegations. The same order called for the complaint to be unsealed in April, but it only hit the docket on Tuesday for reasons that were not immediately clear. Law360 on Wednesday afternoon asked DOJ representatives at the U.S. Attorney's Office in Manhattan to clarify whether the government would be intervening. Within 40 minutes, the entire case docket was again placed under seal on Pacer. A DOJ representative late Wednesday declined to comment on the status of intervention or the resealing of the case. In a short statement Wednesday, Cigna also didn't say whether the federal government had decided to join the case. "We are proud of our industry-leading Medicare Advantage program and the manner in which we conduct our business," the company said. "We will actively defend Cigna against unjustified allegations." Cutler, who represented himself when filing the case, didn't immediately respond to an email and voicemail seeking comment on Wednesday. Cutler's complaint focuses primarily on Cigna's arrangements with contractors that sent nurse practitioners to patient homes for health screenings. "On numerous occasions, THM managers made clear to executives at Cigna-HealthSpring" that nurses couldn't definitively diagnose serious conditions, but Cigna went ahead and billed Medicare Advantage as if the assessments were "confirmed medical diagnoses," the complaint alleges, referring to Texas Health Management. Cutler's suit describes one instance of billing codes being added for dementia and chronic obstructive pulmonary disease even though a nurse practitioner reported that a patient's mental and respiratory functions were normal. In another section, the suit describes Cigna training contractors to diagnose rheumatoid arthritis based solely on fatigue, weight loss and certain symptoms of pain and stiffness. The government was "unaware that these claims were false and fraudulent," and it "overpaid Cigna-HealthSpring by more than $1.4 billion," the complaint said of claims submitted over the five-year period. Cigna paid $3.8 billion in 2012 to acquire HealthSpring Inc., which at the time had 340,000 Medicare Advantage enrollees. There are 22 million enrollees nationwide among all Medicare Advantage insurers, and Cigna is a relatively small player in the space, according to the Kaiser Family Foundation. Medicare Advantage insurers are paid more than $200 billion annually, and FCA litigation against them by the DOJ is a relatively new phenomenon. The DOJ joined two whistleblower cases in 2017 against UnitedHealth Group Inc., which has defeated one of those cases and trimmed allegations in the other one. More recently, the DOJ in March hit Anthem Inc. with allegations of Medicare Advantage fraud. All the cases involve allegations that insurers overstated the severity of illnesses to get more money from the government. Cigna noted in its most recent annual report that the DOJ "is conducting an industrywide investigation of Medicare Advantage" billing by insurance companies. Cigna added that it was "currently responding to ... civil investigative demands received from the ... U.S. Attorney's Offices for the Eastern District of Pennsylvania and the Southern District of New York." Counsel information for the government and Cigna were not immediately available. The case is U.S. ex. rel. Cutler v. Cigna Corp. et al., case number 7:17-cv-07515, in the U.S. District Court for the Southern District of New York. --Editing by Jill Coffey.
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