Medicaid: CMS Should Take Steps to Mitigate Program Risks in Managed Care
Released: 2018-06-06T00:00:00

Letter

Background

In accordance with the Improper Payments Information Act of 2002 (IPIA), as amended, and OMB guidance, CMS developed the PERM to estimate the national Medicaid improper payment rate. CMS has other mechanisms to review and assess program integrity risks in state Medicaid managed care programs, and it uses information from the PERM to target its program integrity activities and oversight of states’ Medicaid programs.

IPIA and OMB Guidance for Estimating Improper Payments

IPIA requires federal executive branch agencies to, among other things, (1) identify programs and activities that may be susceptible to significant improper payments; and (2), on an annual basis, estimate the amount of improper payments for susceptible programs and activities. Agency heads must produce a statistically valid estimate or an estimate that is otherwise appropriate, using an OMB-approved alternate methodology. Those agencies with programs identified by OMB as being high priority for additional oversight and review are required to submit annual reports to their Inspectors General detailing the actions the agency plans to take to recover improper payments and prevent future improper payments. The Inspector General of each agency submitting such a report is required to review the quality of the improper payment estimates and methodology, among other things. OMB designated Medicaid as a high priority program. In addition, the Improper Payments Elimination and Recovery Act of 2010 requires the Inspector General of each agency to conduct a compliance review to report on the agency’s compliance with several criteria, one of which is that an agency has reported an improper payment rate of less than 10 percent for each program and activity. IPIA also directed OMB to issue guidance for agencies in implementing the IPIA improper payments requirements. Among other things, the OMB guidance requires that agencies review payments made at the point that federal funds are transferred to nonfederal entities and report on the root causes of identified improper payments.

Payment Error Rate Measurement

To calculate the Medicaid improper payment rate through the PERM, CMS computes an annual rolling average of improper payment rates across all states based on a 17-state, 3-year rotation cycle. In accordance with IPIA, as amended, OMB approved CMS’s PERM methodology, and the HHS-OIG conducts annual compliance reviews. Beginning with its annual improper payment compliance review for fiscal year 2014, the HHS-OIG established a rotating approach to reviewing the estimation methodology for high-priority programs, including Medicaid, that OMB deemed susceptible to improper payments. Due to the number and complexity of the programs, the HHS-OIG methodology reviews are scheduled to be performed over a 4-year period; the PERM estimation methodology will be reviewed as a part of its fiscal year 2017 compliance review.

Each of the three components of the Medicaid PERM—FFS, managed care, and eligibility—is estimated differently:

The FFS component of the PERM measures errors in a sample of FFS claims, which are records of services provided and the amount the Medicaid program paid for these services. For the majority of sampled FFS claims, the PERM review contractor performs a medical review, which includes a review of the medical documentation to determine errors that do not meet federal and state policies, such as medically unnecessary services, diagnosis coding errors, and policy violations. Any FFS claims that were paid for services that should have been covered under a managed care plan’s capitated payment are also considered errors.

The managed care component of the PERM measures errors that occur in the capitated payments that state Medicaid agencies make to managed care organizations (MCO) on behalf of enrollees. Capitated payments are periodic payments approved by CMS that state Medicaid agencies make to contracted MCOs to cover the provision of medical services to enrollees, as well as the MCOs’ administrative expenses and their profits or earnings. The PERM assesses whether any payments made to the MCOs were in amounts different than those the state agency is contractually required to pay, which are approved by CMS. In contrast to the FFS component, the managed care component of the PERM neither includes a medical review of services delivered to enrollees, nor reviews of MCO records or data.

The eligibility component of the PERM measures errors in state determinations of whether enrollees meet categorical and financial criteria for receipt of benefits under the Medicaid program. The eligibility component assesses determinations for both FFS and managed care enrollees. This component has not been calculated since 2014; instead, CMS piloted different approaches to update the methodologies used to assess enrollee eligibility, as the Patient Protection and Affordable Care Act changed income eligibility requirements for nonelderly, nonpregnant individuals who qualify for Medicaid. Beginning in the 2019 reporting year, eligibility reviews under the PERM will resume and will be conducted by a federal contractor.

Medicaid Program Integrity and Oversight in Managed Care

Medicaid program integrity consists of efforts to ensure that federal and state expenditures are used to deliver quality, necessary care to eligible enrollees, and efforts to prevent fraud, waste, and abuse. We have found in prior work that CMS’s and states’ program integrity efforts focused primarily on payments and services delivered under FFS and did not closely examine program integrity in Medicaid managed care. For Medicaid managed care, CMS has largely delegated program integrity oversight of MCOs to the states. States, in turn, generally oversee MCOs and the providers under contract to MCOs through their contracts with the MCOs and reporting requirements.

Some program integrity risks for managed care are similar to those in FFS, including payments made for nonenrolled, ineligible, or deceased individuals; payments to ineligible, excluded, or deceased providers; and payments to providers for improper or false claims, such as payments for services that are not medically necessary. Other program integrity risks are more unique to managed care. For example, capitated payments generally reflect the average cost to provide covered services to enrollees, rather than a specific service. Federal law requires capitation rates to be actuarially sound, meaning that, among other things, they must be reasonably calculated for the populations expected to be covered and for the services expected to be furnished under contract. In order to receive federal funds for its managed care program, a state is required to submit the rates it pays MCOs and the methodology it uses to set those rates to CMS for review and approval. Additionally, federal and state oversight of Medicaid managed care can include ensuring that MCOs fulfill contractual provisions within their managed care contracts. In some cases, these provisions relate directly to program integrity activities, including plans and procedures for identifying, recovering, and reporting on overpayments made to providers.

Payment Error Rate Measurement for Managed Care Has Limitations, Which Are Not Mitigated by Current CMS and State Oversight

The managed care component of the PERM measures the accuracy of the capitated payments state Medicaid agencies make to MCOs. Specifically, a CMS contractor examines whether the state agency made capitated payments only for eligible enrollees, made capitated payments for the correct amount based on the contract and coverage requirements (time period and geographic location), made capitated payments based on the correct rate for enrollees, and did not make any duplicate payments for enrollees.

CMS’s Payment Error Rate Measurement Measures the Accuracy of Medicaid Managed Care Payments, but Does Not Account for Overpayments and Unallowable Costs

CMS officials noted that the agency established capitated payments as the level of review, because the capitation rate is the transaction used to determine the federal match in managed care. In general, the federal government matches most state expenditures for Medicaid services on the basis of a statutory formula. In FFS, the federal match is provided for the amount the state pays a health care provider for delivering services to enrollees. With managed care, the federal match is provided for the amount of the capitation rate the state pays the MCO. Capitated payments do not directly relate to the provision of a specific service, but reflect the average cost to provide covered services to enrollees. As a result, CMS officials maintain that the capitated payment is the lowest transaction level at which the agency can clearly identify federal funds without making significant assumptions.

Because the managed care component of the PERM review is limited to measuring capitated payments, it does not account for other program integrity risks—such as overpayments to providers and unallowable MCO costs.

In addition to errors in capitated payments included in PERM reviews, CMS regulations state that overpayments in managed care include any payment made to an MCO or provider under contract to an MCO to which the MCO or provider is not entitled under Medicaid. Such overpayments included payments for services that were not provided or medically necessary; or to ineligible, excluded, or deceased providers, which are not measured by the PERM.

Unallowable MCO costs refers to operating costs that MCOs cannot claim under their managed care contracts, such as certain marketing costs, or that the MCO reported incorrectly.

Among the 27 audits and investigations of Medicaid managed care programs we reviewed, 10 identified about $68 million in MCO overpayments to providers and unallowable MCO costs that were not accounted for in PERM estimates. In addition, one investigation of an MCO operating in nine states resulted in a $137.5 million settlement to resolve allegations of false claims. (See app. I for a complete list of the audits and investigations we identified.) However, the full extent of these overpayments and unallowable costs is unknown, because these audits and investigations were conducted over more than 5 years and involved a small fraction of the more than 270 MCOs operating nationwide as of September 2017. Specifically, 24 of the audits and investigations represented reviews in 10 states and, in many cases, focused on individual providers or MCOs; there were about 90 MCOs operating in the 10 states as of September 2017, according to the Kaiser Family Foundation. Some examples of the audits and investigations that identified overpayments and unallowable costs include the following:

The Washington State Auditor’s Office found that two MCOs made $17.5 million in overpayments to providers in 2010, which may have increased the state’s 2013 capitation rates.

The New York State Comptroller found that two MCOs paid over $6.6 million to excluded and deceased providers from 2011 through 2014.

The Massachusetts State Auditor found that one MCO paid $420,000 for health care services and unauthorized prescriptions from excluded providers in 2013 and 2014.

The Department of Justice alleged that an MCO operating in several states submitted inflated expenditure information to the state Medicaid agencies, falsified encounter data, and manipulated claims costs and service provision costs in nine states. The MCO agreed to pay over $137.5 million to resolve these claims.

The Texas State Auditor’s Office found that an MCO reported $3.8 million in unallowable costs for advertising, company events, gifts, and stock options, along with $34 million in other questionable costs in 2015.

The New York State Comptroller also found that an MCO claimed over $260,000 in unallowable administrative expenses, which contributed to an increase in capitation rates across the state.

To the extent that the state does not identify or know of MCO overpayments to providers or unallowable MCO costs, the overpayments and unallowable costs could inflate future capitation rates, as the Washington State Auditor and New York State Comptroller noted in their findings. The PERM assesses the accuracy of capitated payments that states make to MCOs. States set capitation rates based on cost data— historical utilization and spending—that MCOs submit to the state Medicaid agencies, but the PERM does not consider these data. Unless removed from these cost data, unidentified overpayments and unallowable costs would likely inflate the MCO cost data that states use to set capitation rates. (See fig. 1.) As a result, future capitation rates would also be inflated, resulting in higher state and federal spending.

In fiscal year 2017, the Medicaid managed care improper payment rate was 0.3 percent, while the FFS improper payment rate was 12.9 percent, leading to an assumption that the estimated risks in managed care are less significant than those estimated in FFS. However, the managed care component of the PERM does not determine whether MCO payments to providers were for services that were medically necessary, actually provided, accurately billed and delivered by eligible providers, or whether the MCO costs were allowable and appropriate. As a result, the PERM improper payment estimate potentially understates the extent of program integrity risks in Medicaid managed care.

Moreover, this potential understatement in the PERM’s improper payment rate estimate may curtail investigations into the appropriateness of MCO spending. We previously reported that CMS and state program integrity efforts did not closely examine program integrity in Medicaid managed care, focusing primarily on payments and services delivered under FFS.

Our current review of the 27 audits we identified encompassed a 5-year period, suggesting that reviews of managed care continue to be limited. An official from a state auditor’s office we spoke with suggested that some states may not audit services delivered under managed care, because of a low improper payment rate. In addition, he noted that his state Medicaid agency used the relatively low payment error rate in managed care as an indicator of few program integrity problems.

CMS and State Oversight of Managed Care Do Not Ensure the Identification and Reporting of Overpayments and Unallowable Costs

As noted, CMS has increased its focus on and worked with states to improve oversight of Medicaid managed care; however, these efforts and the oversight efforts of states do not ensure the identification and reporting of overpayments and unallowable costs. In recent years, the agency has sought to strengthen oversight of managed care programs through updated regulations; reviews of states’ managed care programs (Focused Program Integrity Reviews) and collaborative audits, which are conducted jointly by federal program integrity contractors and states; and state monitoring of overpayments.

Regulations. In May 2016, CMS updated its regulations for managed care programs in order to strengthen oversight. The updated regulations require a number of additional program integrity activities, such as those listed below. If fully implemented, these updated regulations may help with the identification and removal of overpayments and unallowable costs from data used to set future capitation rates. Under these regulations

States must arrange for an independent audit of the accuracy, truthfulness, and completeness of the encounter and financial data submitted by MCOs, at least once every 3 years.

Through contracts with MCOs, states must require MCOs to have a mechanism through which providers report and return overpayments to the MCOs. States must also require MCOs to promptly report any identified or recovered overpayments—specifying those that are potentially fraudulent—and submit an annual report on recovered overpayments to their state. States must use this information when setting actuarially sound capitation rates.

Through contracts with MCOs, states must also require MCOs to report specific data, information, and documentation. In addition, the MCO’s chief executive officer or authorized representative must certify the accuracy and completeness of the reported data, information, and documentation.

States must enroll MCO providers that are not otherwise enrolled with the state to provide services to enrollees in Medicaid FFS, and revalidate the enrollment at least once every 5 years. Initially this requirement was to start for MCO contracts beginning on July 1, 2018. Subsequently enacted legislation codified this requirement in statute and moved the implementation to January 1, 2018.

It is too early to know if these regulations will assure better oversight of MCO payments to providers and the data used to set future capitation rates. The above program integrity requirements only went into effect recently—for contracts starting on or after July 1, 2017, and January 1, 2018. In addition, CMS issued a notice in June 2017 stating that the agency will use its enforcement discretion to assist states that are unable to implement new requirements by the required compliance date. Also, CMS has delayed issuance of implementing guidance for certain provisions until the agency completes its review, a step that may further delay states’ implementation. The agency has designated Medicaid managed care for “deregulatory action” and plans to propose a new rule, but has not indicated which of these provisions, if any, would be revised.

Focused Program Integrity Reviews. In fiscal year 2014, CMS implemented its Focused Program Integrity Reviews in order to target high-risk program integrity areas in each state, including managed care. As we previously reported, these focused reviews are narrower in scope than the prior reviews conducted by CMS, but they still involve on-site visits to states.

In its focused reviews of managed care, CMS found that several states had incomplete oversight of MCO payments to providers, even though the agency relies on states to verify reported MCO overpayments and to ensure the overpayments are excluded from the data used to set capitation rates. In the 27 focused reviews of managed care from 2014 to 2017, CMS found that MCOs in 17 states reported fewer overpayments to their state Medicaid agencies than CMS would expect. For example, MCOs in at least 5 states reported that overpayments were less than 0.1 percent of their total managed care expenditures; while CMS noted in 1 focused review that overpayments typically equal 1 to 10 percent of total expenditures in managed care. CMS also found that 5 of the 27 states did not verify that MCOs excluded overpayments from these data, and 1 state did not exclude overpayments from the capitation rate setting. This is consistent with our March 2017 report in which we noted that CMS commonly found that MCOs reported low amounts of recovered overpayments and conducted few reviews to identify overpayments. Also, officials from three of the five states we interviewed for that report said the focused reviews gave them leverage in dealing with MCOs or led MCOs to focus more on program integrity. We also reported that CMS officials recommended states take steps to improve their oversight of MCOs, based on the focused review findings.

The findings from CMS’s focused reviews of managed care also highlight the need for greater federal oversight of states. Without these reviews, it is unclear if states would independently identify MCOs’ reporting of overpayments or work to strengthen MCO reporting. Yet, CMS has not yet published the focused reviews of managed care in 13 states, and it may only conduct a focused review in a state once every three or more years. Given CMS’s timeline for the focused reviews, it may take years to determine if corrective actions result in improved program integrity in services delivered through managed care.

Collaborative audits. CMS has expanded the federal-state collaborative audits beyond FFS, and has begun to engage states to participate in collaborative audits of MCOs and providers under contract to MCOs. As a part of the collaborative audit process, the state volunteers to jointly develop the audit processes the federal contractors follow. CMS officials told us that federal contractors have completed 14 collaborative audits of providers under contract to MCOs in three states—Arizona, the District of Columbia, and Tennessee. Only the audit of Trusted Healthcare, an MCO in the District of Columbia, has been published. That audit identified $129,000 in overpayments in a sample of MCO payments to providers, which, if generalized to all of the MCO’s payments over 6 months, would equate to over $4 million in overpayments. According to CMS, three additional states—Louisiana, Nebraska, and New Hampshire—have shown interest in collaborative audits of their MCOs, although such audits require states to prepare data files for the federal contractor and commit staff time. In our March 2017 report, we found that states’ participation in FFS collaborative audits varied and some states reported barriers to their participation. Expanding collaborative audits in managed care will require commitment from and coordination with states.

State monitoring of overpayments in managed care. States are required to report overpayments they have identified and recouped along with state expenditures on a quarterly basis. However, based on the responses of the program integrity officials in 13 of the 16 states we contacted, most officials were unable to define the magnitude of overpayments in their managed care programs, which may signify a need for greater federal oversight or coordination. Specifically, officials in 7 of the 13 states could not or did not identify the share of total reported Medicaid overpayments that occurred in managed care. In 11 of the 13 states, officials responded that they did not directly monitor MCO payments to providers. Of those 11 states, officials in 4 said they depend on MCOs to report overpayments and exclude the overpayments from the data used to set capitation rates. As long as states are not taking action to identify overpayments in managed care, they cannot be assured that they are accurately paying MCOs for medically necessary services provided to enrollees.

Federal internal control standards call for agency management to identify, analyze, and respond to risks. CMS has taken some steps to identify, analyze, and respond to risks through its regulations, Focused Program Integrity Reviews, and collaborative audits. However, key CMS and state oversight efforts fall short of mitigating the limitations of the PERM estimates of improper payments for managed care, because they do not ensure the identification and reporting of overpayments to providers and unallowable MCO costs. Without addressing these key risks, CMS and states cannot ensure the integrity of Medicaid managed care programs.

Conclusions

The 0.3 percent improper payment rate for Medicaid managed care, as measured by the PERM, is significantly lower than the improper payment rate of 12.9 percent for Medicaid FFS. However, this difference does not signal better oversight; rather, it represents differences in the review criteria between FFS and managed care, which result in a less complete accounting for the program integrity risks in managed care. The PERM does not account for key program integrity risks in Medicaid managed care: specifically, unidentified overpayments and unallowable costs. One federal investigation of an MCO operating in nine states resulted in a settlement of $137.5 million to resolve allegations of false claims that were not captured in the national Medicaid improper payment rate estimate. Further, CMS found that MCOs and states do not provide sufficient oversight in Medicaid managed care to address the risks that are not accounted for in the PERM, findings that are reinforced by our reports on Medicaid managed care program integrity. CMS has taken steps to improve its oversight of Medicaid managed care, yet these efforts fall short of ensuring that the agency and states will be able to identify and address overpayments to providers and unallowable MCO costs. Without better measurement of program risks—particularly as expenditures for Medicaid managed care continue to grow—CMS cannot be certain that the low improper payment rate for managed care, as measured by the PERM, accurately reflects lower risks in managed care.

Recommendation

The Administrator of CMS should consider and take steps to mitigate the program risks that are not measured in the PERM, such as overpayments and unallowable costs; such an effort could include actions such as revising the PERM methodology or focusing additional audit resources on managed care. (Recommendation 1)

Agency Comments

We provided a draft of this report to the Department of Health and Human Services (HHS) for comment. In its written comments, HHS concurred with our recommendation, and indicated that it will review regulatory authority and audit resources to determine the best way to account for Medicaid program risks that are not accounted for in the PERM. However, HHS stated that the PERM is not intended to measure all Medicaid program integrity risks, and utilizing the PERM measurement in that way would be a misunderstanding and misuse of the reported rate. HHS also commented that a review of payments from MCOs to providers is outside the scope of IPIA. In addition, HHS asserted that including such a review would diminish the value of PERM reporting—because it would require significant assumptions about the amount of federal share in MCO payments to providers. Further, HHS maintained that such a review also would result in a measurement that was not comparable to other programs or agencies, which would diminish the value of government- wide improper payment rate reporting. We acknowledge that the current PERM methodology has been approved by OMB. However, we maintain that the PERM likely underestimates program integrity risks in Medicaid managed care. To ensure the appropriate targeting of program integrity activities, CMS needs better information about these risks. Given the size of the Medicaid program, its vulnerability to improper payments, and the growth in managed care, it is critical to have a full accounting of program integrity risks in managed care in order to best ensure the integrity of the whole Medicaid program.

In its written comments, HHS also summarized several activities it uses to oversee and support states’ Medicaid program integrity efforts, including state program integrity reviews; collaborative audits conducted by federal contractors; Medicaid Integrity Institute training for state employees; and the Medicaid Provider Enrollment Compendium. HHS also provided technical comments, which we incorporated as appropriate. HHS’s comments are reprinted in appendix II.

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Appendix I: Federal and State Audits and Investigations of Medicaid Managed Care

We reviewed 16 federal and state audits and 11 notices of investigations of Medicaid managed care organizations (MCO) and providers issued from January 2012 to September 2017. As the findings below show, the audits and investigations represent a limited number of reviews that, in many cases, focused on individual states and individual providers or MCOs within that state. Given the limited scope and number of states reviewed, the amount of the overpayments and unallowable costs occurring nationwide is unknown.

These audits and investigations show cases of MCO overpayments to providers or unallowable costs, which are not accounted for by the Centers for Medicare & Medicaid Services’ Payment Error Rate Measurement (PERM) ; errors in capitated payments (e.g., capitated payments made for deceased individuals), which are accounted for in the PERM; and gaps in managed care oversight.

When reporting overpayments and unallowable costs identified in the audits and investigations, we only include amounts specifically attributed to MCOs in our total. This total does not include the following: overpayments and unallowable costs identified in those audits and investigations that did not distinguish between the amounts attributable to MCOs, Medicaid fee-for-service, or Medicare; overpayments and unallowable costs identified in criminal proceedings that are not yet resolved; and errors in capitated payments, as those payments would be reviewed by the PERM.

As a result, the total amount of overpayments and unallowable costs and capitated payment errors in this appendix exceed what we report.

Appendix II: Comments from the Department of Health and Human Services

Appendix III: GAO Contacts and Staff Acknowledgments

GAO Contacts

Staff Acknowledgments

In addition to the contact named above, Leslie V. Gordon (Assistant Director), Pauline Adams (Analyst-in-Charge), Erika Huber, and Drew Long made key contributions to this report. Also contributing were Muriel Brown and Jennifer Whitworth.