A western New York health insurance provider for seniors and the CEO of its medical analytics arm have agreed to pay a total of up to $100 million to settle Justice Department allegations of fraudulent billing for health conditions that were exaggerated or didn’t exist.

Independent Health Association of Buffalo, which operates two Medicare Advantage plans, will pay up to $98 million. Betsy Gaffney, CEO of medical records review company DxID, will pay $2 million, according to the settlement agreement. Neither admitted wrongdoing.

“Today’s result sends a clear message to the Medicare Advantage community that the United States will take appropriate action against those who knowingly submit inflated claims for reimbursement,” Michael Granston, a DOJ deputy assistant attorney general, said in announcing the settlement on Dec. 20.

Frank Sava, a spokesperson for Independent Health, said in a statement: “The assertions by the DOJ are allegations only, and there has been no determination of liability. This settlement is not an admission of any wrongdoing; it instead allows us to avoid the further disruption, expense, and uncertainty of litigation in a matter that has lingered for over a decade.”

Under the settlement, Independent Health will make “guaranteed payments” of $34.5 million in installments from 2024 through 2028. Whether it pays the maximum amount in the settlement will depend on the health plan’s financial performance.

Michael Ronickher, an attorney for whistleblower Teresa Ross, called the settlement “historic,” saying it was the largest payment yet by a health plan based solely on a whistleblower’s fraud allegations. It also was one of the first to accuse a data mining firm of helping a health plan overcharge.

The settlement is the latest in a whirl of whistleblower actions alleging billing fraud by a Medicare Advantage insurer. Medicare Advantage plans are private health plans that cover more than 33 million members, making up over half of all people eligible for Medicare. They are expected to grow further under the incoming Trump administration.

But as Medicare Advantage has gained popularity, regulators at the federal Centers for Medicare & Medicaid Services have struggled to prevent health plans from exaggerating how sick patients are to boost their revenues.

Whistleblowers such as Ross, a former medical coding professional, have helped the government claw back hundreds of millions of dollars in overpayments tied to alleged coding abuses. Ross will receive at least $8.2 million, according to the Justice Department.

Ross said that CMS “created a bounty” for health plans that added medical diagnosis codes as they reviewed patients’ charts — and whether those codes were accurate or not “didn’t seem to bother some people.”

“Billions of dollars are being paid out by CMS for diagnoses that don’t exist,” Ross told KFF Health News in an interview.

Data Mining

DOJ’s civil complaint, filed in September 2021, was unusual in targeting a data analytics venture — and its top executive — for allegedly ginning up bogus payments.

DxID specialized in mining electronic medical records to capture new diagnoses for patients — pocketing up to 20% of the money it generated for the health plan, according to the suit, which said Independent Health used the firm from 2010 through 2017. DxID shut down in 2021.

Gaffney pitched its services to Medicare Advantage plans as “too attractive to pass up,” according to the Justice Department complaint.

“There is no upfront fee, we don’t get paid until you get paid and we work on a percentage of the actual proven recoveries,” Gaffney said, according to the complaint. Timothy Hoover, an attorney for Gaffney, said in a statement that the settlement “is not an admission of any liability by Ms. Gaffney. The settlement simply resolves a dispute and provides closure to the parties.”

‘A Ton of Money’

CMS uses a complex formula that pays health plans higher rates for sicker patients and less for people in good health. Health plans must retain medical records that document all diagnoses they highlight for reimbursement.

Independent Health violated those rules by billing Medicare for a range of medical conditions that either were exaggerated or not supported by patient medical files, such as billing for treating chronic depression that had been resolved, according to the complaint. In one case, an 87-year-old man was coded as having “major depressive disorder” even though his medical records indicated the problem was “transient,” according to the complaint.

DxID also cited chronic kidney disease or renal failure “in the absence of any documentation suggesting that a patient suffered from those conditions,” according to the complaint. Past conditions, such as heart attacks, that required no current treatment, also were coded, according to the DOJ.

The suit alleges that Gaffney said renal failure diagnoses were “worth a ton of money to IH [Independent Health] and the majority of people (over) 70 have it at some level.”

Ross filed the whistleblower case in 2012 against Group Health Cooperative in Seattle, one of the nation’s oldest managed-care groups.

Ross, a former medical coding manager there, alleged that DxID submitted more than $30 million in disease claims — many of which were not valid — on behalf of Group Health for 2010 and 2011. For instance, Ross alleged that the plan billed for “major depression” in a patient described by his doctor as having an “amazingly sunny disposition.”

Group Health, now known as the Kaiser Foundation Health Plan of Washington, denied wrongdoing. But it settled the civil case in November 2020 by agreeing to pay $6.3 million. The DOJ filed a second complaint in 2021, against Independent Health, which also used DxID’s services.

Ross said she lost her job after her suit became public in 2019 and was unable to secure another one in the medical coding field.

“It was rough at times, but we got through it,” she said. Ross, 60, said she is now “happily retired.”

False Claims

Whistleblowers sue under the False Claims Act, a federal law dating to the Civil War that allows private citizens to expose fraud against the government and share in any recovery.

At least two dozen such suits, some dating to 2009, have targeted Medicare Advantage plans for overstating the severity of medical conditions, a practice known in the industry as “upcoding.” Previous settlements from such suits have totaled more than $600 million.

The whistleblowers have played a key role in holding health insurers accountable.

While dozens of CMS audits have concluded that health plans overcharged the government, the agency has done little to recoup money for the U.S. Treasury.

In a surprise action in late January 2023, CMS announced that it would settle for a fraction of the estimated tens of millions of dollars in overpayments uncovered through its audits dating to 2011 and not impose major financial penalties on health plans until a round of audits for 2018 payments, which have yet to be done. Exactly how much plans will end up paying back is unclear.

“I think CMS should be doing more,” said Max Voldman, an attorney who represents Ross.

KFF Health News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF—an independent source of health policy research, polling, and journalism. Learn more about KFF.

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After Elizabeth Moreno had back surgery in late 2015, her surgeon prescribed an opioid painkiller and a follow-up drug test that seemed routine — until the lab slapped her with a bill for $17,850.

A Houston lab had tested her urine sample for a constellation of legal and illicit drugs, many of which, Moreno said, she had never heard of, let alone taken.

“I was totally confused. I didn’t know how I was going to pay this,” said Moreno, 30, who is finishing a degree in education at Texas State University in San Marcos and is pregnant with twins.

Related: ‘Bill Of The Month’: A College Student’s $17,850 Drug Test

Her bill shows that Sunset Labs LLC charged $4,675 to check her urine for a slew of different types of opioids: $2,975 for benzodiazepines, a class of drugs for treating anxiety, and $1,700 more for amphetamines. Tests to detect cocaine, marijuana and phencyclidine, an illegal hallucinogenic drug also known as PCP or angel dust, added $1,275 more.

The lab also billed $850 to test for buprenorphine, a drug used to treat opioid addiction, and tacked on an $850 fee for two tests to verify that nobody had tampered with her urine specimen.

Total bill: $17,850 for lab tests that her insurer, Blue Cross and Blue Shield of Texas, refused to cover, apparently because the lab was not in her insurance network. The insurer sent Moreno an “explanation of benefits” that says it would have valued the work at just $100.92.

Moreno’s father, in a complaint to the Texas attorney general’s office about the bill, identified the Houston surgeon who ordered the costly test as Dr. Stephen Esses. His office told Kaiser Health News the surgeon would have no comment.

Sunset Labs is part of a network of pain clinics and other medical businesses founded by Houston anesthesiologist Phillip C. Phan, according to Texas secretary of state filings and court records. Court records say Phan’s companies also own the facility where Moreno had her operation.

Three experts interviewed by KHN said the lab grossly overcharged; they also doubted the need for the test.

“This just blows my mind,” said Jennifer Bolen, a former federal prosecutor and lab and pain management consultant. “It’s very high and incredibly out of the norm.”

Dan Bowerman, a medical fraud expert, called the lab bill “outrageous” and “unconscionable” and said it should have prompted an investigation.

“Sounds real fishy,” added Charles Root, a veteran industry adviser. He wondered if the lab had “misplaced the decimal point,” because such a test should cost a few hundred dollars, tops.

The lab disagrees.

Sunset’s billings “are in line with the charges of competing out-of-network labs in the geographical area,” lab attorney Justo Mendez said in an emailed statement.

Mendez said pain doctors agree that extensive urine testing is “the best course of action” and that a lab “is not in the position” to question tests ordered by a doctor.

Urine testing for patients with chronic pain has grown explosively over the past decade amid a rising death toll from opioid abuse. Pain doctors say drug testing helps them make sure patients are taking the drugs as prescribed and not mixing them with illegal substances.

Yet the testing boom costs billions of dollars annually and has raised concerns that some labs and doctors run urine tests needlessly — or charge exorbitant rates — to boost profits.

Some insurers have refused to pay, which can leave patients like Moreno threatened with ruinously high bills they had no idea they had incurred.

“Surprise bills larded with unexpected expenses and little explanation inflict sticker shock on vulnerable patients,” said James Quiggle, communications director of the Coalition Against Insurance Fraud, whose members include insurers, consumer groups and government agencies. Quiggle said many “puffed-up bills straddle a fine line between abuse and outright fraud.”

Moreno said her insurance covered the disc removal surgery in December 2015. She said the operation went well and she weaned off the hydrocodone pain pills. To her surprise, on a second return about a month later, the surgeon’s office asked her to leave a urine sample.

“I didn’t think anything of it,” Moreno said of the test. “I said fine, whatever.”

More than a year later, she said, the lab phoned while she was driving and asked her to pay the $17,850 bill. The lab then sent her an invoice, dated March 10, 2017, which states: “[B]ased upon information from your health plan, you owe the amount shown.”

Luckily, her father, Dr. Paul Davis, was visiting her in Texas at the time. Davis, 66, is a retired family practice doctor from Findlay, Ohio.

Davis doubted the need for the test, not to mention what he thought was a sky-high price. He said the University of Findlay, where he helped train physician assistants, gave applicants a basic drug test at a cost of $174, while the local juvenile courts in Ohio paid $10 for a simple drug screen.

Fearing it would ruin his daughter’s credit scores, Davis said, he called Sunset and settled the bill in April 2017 by paying $5,000, which he said he now regrets. The lab sent Moreno a receipt that said it discounted her bill because of “financial need/hardship.”

Asked for comment, Blue Cross spokesman James Campbell said he couldn’t discuss a specific case but noted:

”We are disappointed as well as concerned about transparency whenever [any] member is surprised by an excessive charge for a seemingly routine service or received services that may not have been medically necessary.”

Campbell also said the lab was out-of-network and “we do not control how much they charge for services rendered.” The insurer encourages patients to confirm that all medical care they seek comes from medical providers in the Blue Cross network, he added.

Prices for urine tests can vary widely depending upon complexity and the technology used. Some doctors’ offices use a simple cup test, which can detect several classes of drugs on the spot. These tests rarely cost more than $200, and typically much less.

Bills climb higher when labs check for levels of multiple drugs and bill for each one, a practice insurers argue is seldom medically justified. But even labs sued by insurers alleging wildly excessive testing typically have billed $9,000 or less, court records show. One insurer sued a lab for charging $1,845 for a drug test, for instance.

Davis said Sunset Labs ignored his requests for a full explanation of the charges. In May, he filed a written complaint about the bill with the Texas attorney general’s office that included a copy of the bill and accused the lab of “price gouging of staggering proportions.”

“Young people just starting out, such as my daughter, may not have the ability to pay and this could result in damaged credit ratings or even bankruptcy,” he wrote.

Davis got a letter back from Attorney General Ken Paxton, who said the office would “review the information.” A spokesperson for Paxton told KHN: “We have received complaints about that business, but we can’t comment on anything else.” Sunset attorney Mendez said the lab is “not aware” of any such complaints.

In an interview, Davis also questioned the need for his daughter’s urine test because she received opioids only for a short period and the results would have had no impact on her treatment. In his complaint to the attorney general, Davis said the surgeon told him he ordered the tests because he feared possible retribution from the state medical licensing board for not testing patients who had been prescribed an opioid. The Texas Medical Board doesn’t require urine tests for patients receiving opioids for short-term pain, said spokesman Jarrett Schneider. That’s a “question of independent medical judgment as to whether the physician believes a drug test should be required,” he said.

Bad Reviews

Sunset Labs has an “F” rating with the Houston Better Business Bureau, which on its website posts an August 2017 complaint from a patient charged $16,150 for a urine test.

“This is not covered under my health insurance so I am expected to pay this excessive bill,” the complaint reads.

A second website that publishes government billing numbers of doctors and medical businesses includes a comment section with more than a dozen negative “reviews,” mostly complaints that the lab slammed patients with thousands of dollars in fees their insurers balked at paying.

In a pair of lawsuits filed in 2015, three doctors seeking to quit working at pain clinics operated by Phan accused the facilities of improper billing practices, including unnecessary urine testing. The doctors said they feared losing their medical licenses unless they severed their ties.

In one suit, Drs. Purvi Patel and Lance LaFleur also alleged that the pain clinics “pressured” doctors to overprescribe medical gear and genetic tests to insured patients “regardless of medical necessity.” The case did not go forward because the doctors did not pursue it. Neither doctor would comment.

In the second legal case, pain specialist Dr. Baominh Vinh said he resigned in April 2015 “based on certain questionable business practices … that are inconsistent with my ethical boundaries.” Vinh also alleged urine testing was overused. In a countersuit against Vinh, the pain clinics called his allegations a “falsehood” to justify violation of his employment contract.

The parties settled in March of last year. Terms are confidential, but a lawyer for the pain clinics said Vinh paid money to the company “and not vice versa.”

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Federal officials resolved more than a decade ago to crack down on whopping government overpayments to private Medicare Advantage health insurance plans, which were siphoning off billions of tax dollars every year.

But Centers for Medicare & Medicaid Services officials have yet to demand any refunds — and over the years the private insurance plans have morphed into a politically potent juggernaut that has signed up more than 33 million seniors and is aggressively lobbying to stave off cuts.

Critics have watched with alarm as the industry has managed to deflate or deflect financial penalties and steadily gain clout in Washington through political contributions; television advertising, including a 2023 Super Bowl feature; and other activities, including mobilizing seniors. There’s also a revolving door, in which senior CMS personnel have cycled out of government to take jobs tied to the Medicare Advantage industry and then returned to the agency.

Sen. Chuck Grassley (R-Iowa) said Medicare Advantage fraud “is wasting taxpayer dollars to the tune of billions.”

“The question is, what’s CMS doing about it? The agency must tighten up its controls and work with the Justice Department to prosecute and recover improper payments,” Grassley said in a statement to KFF Health News. “Clearly that’s not happening, at least to the extent it should be.”

David Lipschutz, an attorney with the Center for Medicare Advocacy, a nonprofit public interest law firm, said policymakers have an unsettling history of yielding to industry pressure. “The health plans throw a temper tantrum and then CMS will back off,” he said.

Government spending on Medicare Advantage, which is dominated by big health insurance companies, is expected to hit $462 billion this year.

New details of the government’s failure to rein in Medicare Advantage overcharges are emerging from a Department of Justice civil fraud case filed in 2017 against UnitedHealth Group, the insurer with the most Medicare Advantage enrollees. The case is pending in Los Angeles. The DOJ has accused the giant insurer of cheating Medicare out of more than $2 billion by mining patient records to find additional diagnoses that added revenue while ignoring overcharges that might have reduced bills. The company denies the allegations and has filed a motion for summary judgment.

Records from the court case are surfacing as the Medicare Advantage industry ramps up spending on lobbying and public relations campaigns to counter mounting criticism.

While critics have argued for years that the health plans cost taxpayers too much, the industry also has come under fire more recently for allegedly scrimping on vital health care, even dumping hundreds of thousands of members whose health plans proved unprofitable.

“We recognize this is a critical moment for Medicare Advantage,” said Rebecca Buck, senior vice president of communications for the Better Medicare Alliance, which styles itself as “the leading voice for Medicare Advantage.”

Buck said initiatives aimed at slashing government payments may prompt health plans to cut vital services. “Seniors are saying loud and clear: They can’t afford policies that will make their health care more expensive,” she said. “We want to make sure Washington gets the message.”

AHIP, a trade group for health insurers, also has launched a “seven-figure” campaign to promote its view that Medicare Advantage provides “better care at a lower cost,” spokesperson Chris Bond said.

Revolving Door

CMS, the Baltimore-based agency that oversees Medicare, has long felt the sting of industry pressure to slow or otherwise stymie audits and other steps to reduce and recover overpayments. These issues often attract little public notice, even though they can put billions of tax dollars at risk.

In August, KFF Health News reported how CMS officials backed off a 2014 plan to discourage the health plans from overcharging amid an industry “uproar.” The rule would have required that insurers, when combing patients’ medical records to identify underpayments, also look for overcharges. Health plans have been paid billions of dollars through the data mining, known as “chart reviews,” according to the government.

The CMS press office declined to respond to written questions posed by KFF Health News. But in a statement, it called the agency a “good steward of taxpayer dollars” and said in part: “CMS will continue to ensure that the MA program offers robust and stable options for people with Medicare while strengthening payment accuracy so that taxpayer dollars are appropriately spent.”

Court records from the UnitedHealth case show that CMS efforts to tighten oversight stalled amid years of technical protests from the industry — such as arguing that audits to uncover overpayments were flawed and unfair.

In one case, Jeffrey Grant, a CMS official who had decamped for a job supporting Medicare Advantage plans, protested the audit formula to several of his former colleagues, according to a deposition he gave in 2018.

Grant has since returned to CMS and now is deputy director for operations at the agency’s Center for Consumer Information and Insurance Oversight. He declined to comment.

At least a dozen witnesses in the UnitedHealth case and a similar DOJ civil fraud case pending against Anthem are former ranking CMS officials who departed for jobs tied to the Medicare Advantage industry.

Marilyn Tavenner is one. She led the agency in 2014 when it backed off the overpayment regulation. She left in 2015 to head industry trade group AHIP, where she made more than $4.5 million during three years at the helm, according to Internal Revenue Service filings. Tavenner, who is a witness in the UnitedHealth case, had no comment.

And in October 2015, as CMS department chiefs were batting around ideas to crack down on billing abuses, including reinstating the 2014 regulation on data mining, the agency was led by Andy Slavitt, a former executive vice president of the Optum division of UnitedHealth Group. The DOJ fraud suit focuses on Optum’s data mining program.

In the legal proceedings, Slavitt is identified as a “key custodian regarding final decision making by CMS” on Medicare Advantage.

“I don’t have any awareness of that conversation,” Slavitt told KFF Health News in an email. Slavitt, who now helps run a health care venture capital firm, said that during his CMS tenure he “was recused from all matters related to UHG.”

‘Improper’ Payments

CMS officials first laid plans to curb escalating overpayments to the insurers more than a decade ago, according to documents filed in August in the UnitedHealth case.

In a January 2012 presentation, CMS officials estimated they had made $12.4 billion worth of “improper payments” to Medicare Advantage groups in 2009, mostly because the plans failed to document that patients had the conditions the government paid them to treat, according to the court documents.

As a remedy, CMS came up with an audit program that selected 30 plans annually, taking a sample of 201 patients from each. Medical coders checked to make sure patient files properly documented health conditions for which the plans had billed.

The 2011 audits found that five major Medicare Advantage chains failed to document from 12.3% to 25.8% of diagnoses, most commonly strokes, lung conditions, and heart disease.

UnitedHealth Group, which had the lowest rate of unconfirmed diagnoses, is the only company named in the CMS documents in the case file. The identities of the four other chains are blacked out in the audit records, which are marked as “privileged and confidential.”

In a May 2016 private briefing, CMS indicated that the health plans owed from $98 million to $163 million for 2011 depending on how the overpayment estimate was extrapolated, court records show.

But CMS still hasn’t collected any money. In a surprise action in late January 2023, CMS announced that it would settle for a fraction of the estimated overpayments and not impose major financial penalties until 2018 audits, which have yet to get underway. Exactly how much plans will end up paying back is unclear.

Richard Kronick, a former federal health policy researcher and a professor at the University of California-San Diego, said CMS has largely failed to rein in billions of dollars in Medicare Advantage overpayments.

“It is reasonable to think that pressure from the industry is part of the reason that CMS has not acted more aggressively,” Kronick said.

CMS records show that officials considered strengthening the audits in 2015, including by limiting health plans from conducting “home visits” to patients to capture new diagnosis codes. That didn’t happen, for reasons that aren’t clear from the filings.

In any case, audits for 2011 through 2015 “are not yet final and are subject to change,” CMS official Steven Ferraina stated in a July court affidavit.

“It’s galling to me that they haven’t recovered more than they have,” said Edward Baker, a whistleblower attorney who has studied the issue.

“The government needs to be more aggressive in oversight and enforcement of the industry,” he said.

Senior CMS official Cheri Rice recommended in the October 2015 email thread with key staff that CMS could devote more resources to supporting whistleblowers who report overbilling and fraud.

“We think the whistleblower activity could be as effective – or even more effective – than CMS audits in getting plans to do more to prevent and identify risk adjustment overpayments,” Rice wrote.

But the handful of cases that DOJ could realistically bring against insurers cannot substitute for CMS fiscal oversight, Baker said.

“Unfortunately, that makes it appear that fraud pays,” he said.

Spending Surge

In December, a bipartisan group of four U.S. senators, including Bill Cassidy (R-La.), wrote to CMS to voice their alarm about the overpayments and other problems. “It’s unclear why CMS hasn’t taken stronger action against overpayments, despite this being a longstanding issue,” Cassidy told KFF Health News by email.

In January, Sen. Elizabeth Warren (D-Mass.) and Rep. Pramila Jayapal (D-Wash.) called for CMS to crack down, including by restricting use of chart reviews and home visits, known as health risk assessments, to increase plan revenues.

Cassidy, a physician, said that “upcoding and abuses of chart review and health risk assessments are well-known problems CMS could address immediately.”

Advocates for Medicare Advantage plans, whose more than 33 million members comprise over half of people eligible for Medicare, worry that too much focus on payment issues could harm seniors. Their research shows most seniors are happy with the care they receive and that the plans typically cost them less out-of-pocket than traditional Medicare.

Buck, the spokesperson for the Better Medicare Alliance, said that as the annual open enrollment period starts in mid-October, seniors may see “fewer benefits and fewer plan choices.”

The group has ramped up total spending in recent years to keep that from happening, IRS filings show.

In 2022, the most recent year available, the Better Medicare Alliance reported expenses of $23.1 million, including more than $14 million on advertising and promotion, while in 2023, it paid for a Super Bowl ad featuring seniors in a bowling alley and left viewers with the message: Cutting Medicare Advantage was “nuts.”

Bruce Vladeck, who ran CMS’ predecessor agency from 1993 through 1997, said that when government officials first turned to Medicare managed care groups in the 1990s, they quickly saw health plans enlist members to help press their agenda.

“That is different from most other health care provider groups that lobby,” Vladeck said. “It’s a political weapon that Medicare Advantage plans have not been at all reluctant to use.”

The Better Medicare Alliance reported lobbying on 18 bills this year and last, according to OpenSecrets. Some are specific to Medicare Advantage, such as one requiring insurers to report more detailed data about treatments and services and another to expand the benefits they can offer, while others more broadly concern health care costs and services.

Proposed reforms aside, CMS appears to believe that getting rid of health plans that allegedly rip off Medicare could leave vulnerable seniors in the lurch.

Testifying on behalf of CMS in a May 2023 deposition in the UnitedHealth Group suit, former agency official Anne Hornsby said some seniors might not “find new providers easily.” Noting UnitedHealth Group is the single biggest Medicare Advantage contractor, she said CMS “is interested in protecting the continuity of care.”

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