KFF Health News has sued the U.S. Department of Health and Human Services Office of Inspector General to compel it to release a range of Medicare Advantage health plan audits and other financial records.

The suit, filed Nov. 12 in U.S. District Court in San Francisco under the Freedom of Information Act, or FOIA, seeks documents from the HHS inspector general’s office, which acts as a watchdog over federal health insurance programs run by the Centers for Medicare & Medicaid Services.

The suit asks for correspondence and other records of contact between HHS officials or their representatives and Medicare Advantage organizations concerning overpayment audit findings and potential financial penalties.

It also seeks records reflecting communication between HHS and CMS officials regarding the government’s policies for recovering overpayments discovered during Medicare Advantage audits, including a controversial decision in January 2023 to limit dollar recoveries for audits dating back a decade or more.

Additionally, the suit seeks copies of government contracts awarded to outside firms that have conducted Medicare Advantage audits, including budgets and performance evaluations, dating to 2020. In these audits, reviewers take a sample of 200 patients from a health plan and determine whether medical records support the diagnoses the government paid health plans to treat.

KFF Health News requested the records in August, but, more than two months later, “no documents, responsive or otherwise, have been produced,” the suit says.

Sam Cate-Gumpert, an attorney with Davis Wright Tremaine, which is representing KFF Health News pro bono in the case, said the information is “critically important to public oversight of government misspending.”

According to the suit, the inspector general’s office has audited the Medicare Advantage program more than three dozen times since 2019, revealing billions of dollars in overpayments.

But government officials have not recouped the overcharges, according to the suit.

The HHS Office of Inspector General “has left taxpayers footing the bill for billions of dollars in overpayments — even though HHS OIG’s primary purpose is to combat fraud and waste in Medicare and other federally funded health programs,” the suit alleges.

“In fact, taxpayers have been forced to pay for the Medicare Advantage program’s wasteful spending twice — first, because of the program itself, and second, because of the costs of the audits, which the government spends millions of dollars to conduct,” according to the suit.

Medicare Advantage, mostly run by private insurance companies, has enrolled more than 33 million seniors and people with disabilities, more than half of people on Medicare.

But the program has faced criticism that it costs billions of dollars more than it should with research showing that many health plans exaggerate how sick patients are to boost payments.

A FOIA lawsuit filed by KFF Health News in September 2019 prompted CMS to release summaries of 90 Medicare Advantage audits revealing millions of dollars in overpayments. As part of a settlement, CMS paid $63,000 in KFF Health News’ legal fees, though it did not admit to wrongfully withholding the records.

The HHS Office of Inspector General had no immediate comment on the suit.

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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By Fred Schulte, KFF Health News
Kaiser Health News is a nonprofit news service covering health issues. It is an editorially independent program of the Kaiser Family Foundation, which is not affiliated with Kaiser Permanente.