Health Law Daily Wrap Up, ADMINISTRATION OF MEDICARE/MEDICAID PROGRAMS—DAB DECISIONS: Repeated submission of improper claims supported a finding of a ‘pattern or practice’ sufficient to justify revocation of enrollment, (Jul 22, 2026)

By Jeffrey H. Brochin, J.D.

Where all three reviews by the Medicare Contractor revealed improper billing rates of 100 percent, 97 percent, and 100 percent respectively over a five-year period, such findings were strong evidence of a pattern or practice of persistent improper claims.

The HHS Departmental Appeals Board (DAB or Board) Civil Remedies Division has upheld CMS’ revocation of a Medicare supplier’s enrollment and billing privileges, as well as their 10-year re-enrollment bar and listing on the preclusion list. The actions were taken after CMS determined that the supplier (Petitioner) had a pattern or practice of submitting reimbursement claims that failed to meet Medicare billing requirements. Revocation based on a pattern or practice of submitting improper claims is an action that falls within CMS’ discretion, and the Board’s review is limited to deciding whether there is a valid legal basis for CMS to have acted. In this case, the nature of Petitioner’s improper claims unequivocally supported a finding of a pattern or practice of the filing of improper claims, (Home Visit MD, PLC, DAB No. CR6917, Doc. No. C-23-788 (June 15, 2026)).

Determining ‘pattern or practice’. CMS may revoke a supplier’s Medicare participation if it fails to meet governing criteria. As relevant to this case, CMS may revoke Medicare participation where a supplier of Medicare items or services has a pattern or practice of submitting reimbursement claims that fail to meet Medicare billing requirements. Determining whether a pattern or practice of improper claims exists lies within CMS’s discretionary authority, subject to guidelines that are stated in the governing regulation. These guidelines include: (A) the percentage of submitted claims that were denied during the period under consideration; (B) whether a supplier has a history of adverse actions and the nature of such actions; (C) the type of billing noncompliance and the specific facts surrounding that noncompliance; and (D) any other information regarding a supplier’s specific circumstances that CMS deems relevant.

Three separate reviews. Petitioner enrolled in the Medicare program in 2005 as a supplier of services. A Medicare contractor, acting on behalf of CMS, reviewed Petitioner’s billing on three separate occasions during 2017, 2020, and 2023. The reviews found that nearly all of the reviewed claims were improper, either because the services for which they were billed were not reasonable or necessary or because the submitted claims failed to meet the Medicare requirements.

2017 review. The 2017 review examined a total of 30 reimbursement claims, and the contractor determined that 100 percent of the claims reviewed were not reasonable and necessary. The contractor identified claims for services that Petitioner billed for that had already been provided by a skilled nursing facility, and further determined that an overpayment was made to Petitioner in the amount of $1,647.52. CMS sent two demand letters to Petitioner for the overpayment determination, but Petitioner did not appeal.

2020 review. For the 2020 review, the contractor evaluated 35 additional claims for 46 services, and found that 24 of those claims and 45 of the 46 services were improper. The findings of impropriety were that some of the claims were not for services that were reasonable and necessary and did not meet Medicare requirements; and, the contractor also found that for multiple services no documentation was provided to support that any services were rendered. In addition, the contractor found an overpayment of more than $5,451.10 for the claims that it had reviewed, but again, Petitioner did not appeal.

2023 review. The 2023 review involved 25 more claims, and after evaluating those claims, the contractor denied reimbursement for each of them because Petitioner had billed for services that were not reasonable and necessary and that were not provided as claimed. Furthermore, the contractor again determined that there was no documentation to support that any service was rendered and that notes were clearly cloned. The contractor determined that CMS had overpaid Petitioner over $2,646.69 for those improper claims.

Unequivocal findings. The Board found the fact that the pattern persisted despite the contractor’s efforts to offer Petitioner remedial assistance, to be especially telling; and, it was equally noteworthy that the pattern of improper claims submissions persisted over a period of more than five years. The Board also found that the nature of Petitioner’s improper claims unequivocally supported a finding of a pattern or practice of improper claims by Petitioner. Accordingly, CMS and its contractor justifiably concluded from Petitioner’s persistent submission of claims that were not supported by documentation that Petitioner had a “habit” of submitting claims that continued to be denied for the same or similar reasons.

The circumstances surrounding Petitioner’s submission of improper claims also supported CMS’s determination to revoke Petitioner’s Medicare enrollment, because the case did not involve random error or even systemic billing errors that Petitioner corrected once it was informed about them; rather, it disclosed a persistent pattern of improper claims by Petitioner, a pattern that continued despite the efforts by the contractor to reveal it and to encourage Petitioner to correct its improper practices.

Petitioner’s arguments rejected. Petitioner argued that the percentage of claims that the contractor denied after review was actually considerably lower than that which the contractor and CMS contended to be the case: Petitioner treated many more patients and billed for many additional claims and services than those that were reviewed by CMS and/or its contractors, and therefore, CMS could not infer a pattern or practice of improper claims, because the overall percentages would be much lower if all of its patients and claims were considered.

However, the Board rejected such assertions because, per precedent, the assertion incorrectly assumed that the remainder of the claims not reviewed were without error. Notably, there is not a minimum error rate or dollar amount required before CMS is permitted to revoke billing privileges under 42 C.F.R. §424.535(a).

Mandatory re-enrollment bar. The Board noted that a bar against re-enrollment is a mandatory remedy where a supplier engages in a pattern or practice of filing improper claims. In the instant case, CMS imposed a re-enrollment bar against Petitioner of 10 years--the maximum that the regulation permits--except in circumstances not applicable here. The determination of the length of the re-enrollment bar falls within CMS’s discretion, and the Board is without authority to review that determination.

Based on the foregoing, the Board affirmed CMS’s revocation of the revocation of Medicare enrollment and billing privileges, the 10-year re-enrollment bar, and the listing of Petitioner on the preclusion list.

AdministrativeDecisions: DABDecisions CMSNews BillingNews ProgramIntegrityNews ProviderNews