Can Denying Access to Medicare Advantage Patients be deemed fraud?

Denying Access to Medicare Advantage Patients can be Deemed Healthcare Fraud:

Primary Care Physician (PCP) Practices or companies that encourage and promote claiming an exaggerated level of severity of a beneficiary's (or patient's) medical condition.  The higher the documented severity the higher the Medicare Advantage capitated rates from Medicare.  This occurs when the Medicare beneficiary enrolls in a Medicare Advantage health insurance plan sponsored by private insurance companies.  The less the patient uses medical services, the more money the PCP makes.  Hence the scheme involves the PCP denying the patient access to specialists services in order to keep the actual costs low.   The PCP is paid a capitated rate based on the foreseen risk of the patient, but the PCP denies access to the patient in order to keep the costs low and the profitability high.  

According to the Rules set by the Health and Human Services department:

The Department launched the Regulatory Sprint with the express purpose of removing potential regulatory barriers to care coordination and value-based care created by certain key health care laws and associated regulations, including the Federal anti-kickback statute and Beneficiary Inducements CMP.[1] Through the Regulatory Sprint, HHS aims to encourage and improve patients' experience of care, providers' coordination of care, and information sharing to facilitate efficient care and preserve and protect patients' access to data.

The Federal anti-kickback statute is an intent-based, criminal statute that prohibits intentional payments, whether monetary or in-kind, in exchange for referrals or other Federal health care program business. Safe harbor regulations describe various payment and business practices that, although they potentially implicate the Federal anti-kickback statute, are not treated as offenses under the statute. Compliance with a safe harbor is voluntary. The Beneficiary Inducements CMP is a civil, administrative statute that prohibits knowingly offering something of value to a Medicare or State health care program beneficiary to induce them to select a particular provider, practitioner, or supplier.

The Secretary of HHS (the Secretary) has identified transforming the U.S. health care system to one that pays for value as a top priority. Unlike the traditional fee-for-service (FFS) payment system, which rewards providers for the volume of care delivered, a value-driven health care system is one that pays for health and outcomes. Delivering better value from the health care system will require the transformation of established practices and enhanced collaboration among providers and other individuals and entities. The purpose of this rulemaking is to finalize modifications to existing safe harbors to the Federal anti-kickback statute and finalize the addition of new safe harbors and a new exception to the civil monetary penalty provision prohibiting inducements to beneficiaries, “Beneficiary Inducements CMP,” to remove potential barriers to more effective coordination and management of patient care and delivery of value-based care.


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