The federal False Claims Act (FCA) has long been a threat to Medicare Advantage organizations (MAOs) and Medicaid managed care organizations (Medicaid MCOs) due to the nature of the business. Historically, however, health plans were not primary targets as the government and relators’ counsel focused on providers. Medicare Advantage Risk Adjustment (MA RA) shifted that landscape, with Department of Justice (DOJ) and whistleblowers bringing numerous cases against MAOs for the alleged submission of false MA RA data. While those MA RA cases create significant risk, they are just the tip of the iceberg as the government and relators’ counsel now have plans directly in their crosshairs. Other emerging areas of FCA risk include:

• Federal Anti-Kickback Statute (AKS). The AKS comes into play for MAOs, Medicare Part D plans and Medicaid MCOs in many ways. A kickback violation creates FCA liability, and the AKS will almost certainly fuel new and evolving FCA claims against health plans. One area of particular concern is Medicare Advantage (MA) marketing, where improper payments to providers or others involved in the marketing and enrollment process can create FCA liability. As an example, in July 2022, an MCO agreed to pay the government $4.2 million to settle FCA allegations that it implemented a gift card incentive program in violation of the AKS. As MA marketing heats up and the industry becomes more competitive, plans must closely analyze marketing programs to ensure that...

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