DOJ’s Increased Focus on Risk Adjustment and Compliance

As the Department of Justice (DOJ) continues its efforts to investigate the diagnosis capture and reporting practices of Medicare Advantage Organizations (MAOs), MAO executives must start to ask, “How can we most effectively report all conditions contributing to a member’s health outcomes while upholding rigorous compliance standards, when official guidance on what is considered ‘compliant’ is unclear?” 

Risk Adjustment Litigation to Date

CMS rules are clear that MAOs must submit data for risk adjustment that is both accurate and complete to give CMS a true representation of a member’s disease burden. For many MAOs, this means submitting supplemental data from chart reviews or assessment programs to add unreported member conditions. Other MAOs have taken this one step further and have initiated programs to delete member conditions that were previously submitted to CMS when they have clear evidence that the condition is not supported after a review of the physician documentation.

Most of the recent activity has been targeted at large health plans for potentially overstating the disease burden of their membership via a common practice of retrospective chart review. This practice involves reporting additional diagnosis codes to CMS abstracted from reviewing members’ medical records after the member/physician visit has already occurred. These codes were not originally submitted to the health plan by the provider. In doing so, MA plans improve accuracy of member risk scores by providing a fuller picture of the member’s health status. 

What has come into question, however, is whether plans are, or should be, “looking both ways”. Not only are diagnoses omitted from claims submission by providers, but incorrect diagnosis codes are submitted, overstating the current illness of the membership, largely by reporting ailments that have resolved or were incorrectly coded. CMS has made a strong stance that the health plan is responsible for the “accuracy, completeness, and truthfulness of the submitted data”, and submitting these codes, or turning a blind eye is in violation of the False Claims Act.

Cigna Lawsuit

The most recent lawsuit against Cigna, however, has a different focus by centering on risk adjustment programs that are more prospective in nature. The lawsuit alleges that questionable conditions were reported during special assessments called “360 assessments”. The conditions were recorded on pre-populated forms. However, they were not always verified through medical testing, were often confirmed anecdotally from patient descriptions, and were reported by providers who were not familiar with the patient’s history. 

The 360 assessments were implemented as an enhancement to the standard Medicare Annual Wellness Visit (AWV), to allow physicians to focus on assessing all chronic member conditions. The program was first deployed at Primary Care Physicians (PCPs), with incentives for completing member visits ($150 per encounter). Additional incentives were given for attending training sessions ($1,000 per training) on how to effectively perform the visit. Due to low adoption, Cigna pivoted to having external vendors perform these encounters, often in the patient’s home with a Nurse Practitioner.

The 360 assessment form utilized by Cigna is similar to other prospective member-specific assessment tools used today as part of a comprehensive risk adjustment program. These assessment tools are currently being used by either PCPs during the in-office encounter or during in-home assessments using external clinical staff. These are typically long documents covering all body systems, which allows the provider to check for positive or negative findings, along with sections to add notes. The 360 assessment form also included a section called the Health Management Report (HMR), which summarizes all of the conditions previously submitted to CMS, but without providing insight into who reported the conditions, or when.

Per the DOJ, these vendors would submit these 360 assessments to another department for diagnoses coding abstraction. The results were sent to Cigna with disclaimers instructing the intent of providing information back to the PCP for diagnosis verification. The lawsuit alleges that Cigna submitted the diagnoses from the forms to CMS to be included in risk adjustment calculations regardless of PCP verification. In fact, included in the lawsuit is documentation of a PCP rejecting a diagnosis established during a 360 encounter, and it subsequently being removed from the form.

Incentives for provider performance are outlined in the document, indicating that benchmarks for condition reconfirmation performance were set (80-85%), and volumes of encounters were shifted towards providers that met or exceeded the benchmark.


This recent suit goes beyond questioning accurate data submission from health plans by questioning motives of providing actionable data, compensation for program participation, and at a high-level, the need for appropriate guardrails around pay-for-performance.

The Cigna lawsuit centers on the use of prospective assessments to capture and submit risk adjustment diagnoses data. While this differs from the other DOJ investigations that focused mainly on the use of retrospective chart reviews, the alleged violation of the False Claims Act is the underlying constant in all cases. The Cigna lawsuit adds to the growing body of investigations conducted by the DOJ, which focuses on the submission of risk adjustment diagnoses data to CMS and whether these submissions are a true reflection of a member’s disease burden. 

It is becoming clear that MAOs who participate in Medicare Advantage should begin to evaluate their own risk adjustment programs and whether they are not only utilizing programs to add diagnoses to a member’s risk profile, but also whether they are doing enough to delete diagnoses from CMS which may have been submitted in error.

Where Do We Go from Here?

Here are the top 3 questions MAOs executives should start to ask their risk adjustment teams:

  1. Are my risk adjustment programs designed to collect only additional member diagnoses for submission to CMS?
  2. Do I have a risk adjustment mitigation program in place to survey diagnoses submitted on claims to determine if there is documentation risk (i.e., no documentation support for the diagnoses)?
  3. Has an independent review of the risk adjustment program been completed to assess for compliance risk?

GHG’s subject matter experts can help with the development or remediation of your risk adjustment strategy. Reach out to GHG’s SVP of Healthcare Analytics and Risk Adjustment Solutions, Jeff De Los Reyes, at or Patrick Petty, Senior Consultant Risk Adjustment, at to start the conversation.

On October 8th, GHG’s SVP of Healthcare Analytics and Risk Adjustment Solutions, Jeff De Los Reyes, moderated a webinar with Austin Bostock of Pareto Intelligence and Meleah Bridgeford of Episource to discuss the future of the regulatory environment, as well as steps you can take to ensure that your data is ready in advance of the submission deadline. 

Our speakers shared their unique perspectives on the best strategies to deploy to ensure that your upstream encounter data is accurate, complete, compliant, and ready for submission. 

If you did not get a chance to attend the webinar, click here to view the recording.