AGG Files Amicus Brief Supporting CMS Medicare Advantage RADV Rule

AGG attorneys filed an amicus brief on behalf of economists and health policy scholars in Humana Inc. v. Kennedy, which is pending before the U.S. Court of Appeals for the Fifth Circuit. The appeal challenges the Centers for Medicare & Medicaid Services’ (“CMS”) 2023 risk adjustment data validation (“RADV”) Final Rule governing audits of Medicare Advantage Organizations (“MAOs”).

The brief supports CMS and explains that RADV audits are a critical mechanism for identifying unsupported diagnosis codes; recovering improper payments; and combating fraud, waste, and abuse in the Medicare Advantage program. The Amici draw on extensive experience with Medicare Advantage payment and risk adjustment to show how coding intensity and unsupported diagnoses have driven billions in excess payments, increasing federal Medicare spending and raising Part B premiums for all beneficiaries.

The Amici further argue that CMS acted within its statutory authority in eliminating the fee‑for‑service (“FFS”) “adjuster” and adopting extrapolation, because the Medicare actuarial‑equivalence requirement governs prospective rate‑setting, not retrospective recovery of overpayments identified through audits. The brief emphasizes that CMS gave ample notice of its rationale in the 2018 proposed rule and subsequent comment notices, and that industry stakeholders understood and meaningfully engaged with CMS’ plan to strengthen RADV.

According to the brief, invalidating the RADV rule would undermine CMS’ ability to police improper payments, threaten Medicare’s long‑term sustainability, and further burden taxpayers and Medicare beneficiaries.