Health Law Daily Wrap Up, MEDICARE OVERPAYMENTS AND UNDERPAYMENTS—N.D. Ohio: Medicare council’s determination vis-a-vis review of new evidence upheld in overpayment case, (Apr 6, 2026)

By Leah S. Poniatowski, J.D.

No requirement on remand to review new evidence, only “make a determination regarding” whether there was good cause to admit the evidence.

A chiropractor obligated to reimburse the government for over $265,000 in Medicare overpayments could not additionally reduce the amount through a supplemental appeal because the evidence he submitted did not need to be reviewed by a Medicare Appeals Council (MAC) on remand, a federal district court in Ohio ruled. The remand order to the MAC was to evaluate whether the supplemental appeal had been timely and if there was good cause to review the evidence, to which the MAC complied and, thus, the MAC decision was upheld (Kist v. Kennedy, No. 1:25 CV 417 (N.D. Ohio March 30, 2026)).

Background. In 2011, a Medicare contractor reviewed payments made during 2007 through 2010 to the chiropractor and determined that the chiropractor had been overpaid and must reimburse $265,346 in overpayments. The chiropractor appealed the determination to an administrative law judge (ALJ), who reduced the reimbursement for a portion of patient claims.

The chiropractor timely appealed the ALJ’s decision to the MAC. However, the MAC did not consider a supplemental appeal, replete with previously not submitted medical documentation. The MAC held that the supplemental appeal had not been timely filed. The chiropractor filed a complaint in a federal district court against the MAC.

The court ordered that the case be remanded to the MAC, instructing the council to “issue a new decision pursuant to 42 C.F.R. § 405.1140(a)(3),” consider the supplemental appeal “as if it were timely filed,” and “make a determination regarding any new evidence included in Plaintiff’s supplemental appeal, consistent with 42 C.F.R. § 405.1122.” Section 405.1122 pertains to evidence that may be submitted to the council. Accordingly, the MAC reviewed the supplemental appeal arguments and held that, under 42 C.F.R. § 405.1122(c), the chiropractor had failed to show good cause to admit the additional medical records. Nevertheless, the council agreed in part to reduce the overpayment to $198.942.

The chiropractor filed the present lawsuit in federal court, asserting that the council had failed to admit and consider the supplemental appeal, consequently resulting in a determination not based on the merits.

Compliance with order. The court agreed with the council that it had complied with the district court’s remand order and that the chiropractor had not cited any other error to support his claim. First, the MAC’s decision on remand explained that the evidence must be excluded unless there was good cause for the last submission, and the MAC provided the regulatory requirements for good cause.

The chiropractor had submitted the initial treatment plans—for the first time—in the supplemental appeal. The MAC stated that these plans “had no relevance to the patient[’s] updated condition.” In response, the chiropractor explained that the ALJ had denied coverage in the cases where there was no initial treatment plan included in the evidence, and that he had submitted the treatment plans coinciding with the dates of services requested by the MAC, not those later updated.

However, the MAC held that the chiropractor had been given notice of the evidentiary deficiencies at the earlier levels of review, a deficiency noted by each level of review, including the ALJ. Further, the chiropractor had not provided any evidence as to why he was unable to obtain the initial treatment plans at the lower levels of review, or otherwise show that he had tried to obtain the evidence.

The court found that the MAC had considered the supplementary appeal “as if it were timely filed,” had reduced the overpayment total, and had made “a determination regarding any new evidence” pursuant to federal regulation. The chiropractor also did not contest the legal standard that the MAC had applied in its analysis. Therefore, the chiropractor failed to establish that the MAC made any reversible error. The MAC decision was upheld by the court.

The case is No. 1:25 CV 417.

Judge: Gaughan, P.

Attorneys: Robert J. Vecchio (Robert J. Vecchio Co. LPA) for James Kenneth Kist. Renee A. Bacchus, Office of the U.S. Attorney, for Robert F. Kennedy.

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