Home Visit MD, PLC, DAB, CR6917 (2026)

DECISION

I affirm the determination of the Centers for Medicare & Medicaid Services (CMS) to revoke Petitioner’s Medicare enrollment and billing privileges and placing Petitioner on the CMS Preclusion List. 

I. Background

CMS moved for summary judgment and alternatively for a decision based on the written record and without an in-person hearing (CMS Br.).  Petitioner filed a brief and opposed CMS’s motion (P. Br.).  With its motion, CMS filed exhibits that it identified as CMS Exs. 1-25.  Petitioner filed six exhibits (P. Exs. 1-6). 

It is unnecessary that I rule on the motion for summary judgment because this case is ripe for a decision based on the written record without regard to the criteria for imposing summary judgment.  The parties filed a joint status report on May 12, 2026, indicating

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that a decision on the written record was appropriate.1  42 C.F.R. § 498.66.  Consequently, I may resolve any factual disputes based on the documents that the parties offered as exhibits. 

CMS objected to Petitioner’s Exhibits 1, 2, 3, 5, and 6 for failure to show good cause, as duplicative, and as irrelevant.  Petitioner did not file a response.  However, I will admit Petitioner’s exhibit into evidence over CMS’s objection.  I will consider the objections when deciding what weight, if any, should be afforded these exhibits.  To the extent the exhibits are duplicative, I will cite to the CMS exhibits for consistency.  Because there were no objections raised, I will admit CMS Exhibits 1-25 into evidence. 

II. Issues, Findings of Fact and Conclusions of Law

1. Issue

The issue in this case is whether CMS is authorized to impose remedies against Petitioner, including revocation of its Medicare enrollment and billing privileges and placing Petitioner on the Preclusion List. 

2. Findings of Fact and Conclusions of Law
   1. Revocation of Petitioner’s Medicare Enrollment

A supplier of health care services is not entitled to participate in the Medicare program.  The supplier must comply with governing criteria to be eligible to participate or retain eligibility.  42 C.F.R. §§ 424.500, 424.505.  CMS may revoke a supplier’s Medicare participation if it fails to meet governing criteria.  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.  42 C.F.R. § 424.535(a)(8)(ii). 

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 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.  42 C.F.R. § 424.535(a)(8)(ii)(A)-(D). 

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The regulation instructs CMS to consider the guidelines “as appropriate or applicable.”  42 C.F.R. § 424.535(a)(8)(ii).  It does not mandate that a particular guideline or combination of guidelines be met in an individual case.  The regulation leaves it to CMS to decide what weight to afford evidence relating to any of the guidelines. 

Revocation based on a pattern or practice of submitting improper claims is an action that falls within CMS’s discretion.  My review of CMS’s exercise of its discretion is limited to deciding whether there is a valid legal basis for CMS to act.  I must sustain a determination if the facts are sufficient to support it.  William Garner, M.D., DAB No. 3026 at 8 (2020); Sandra E. Johnson, CRNA, DAB No. 2708 at 15 (2016); Letantia Bussell, M.D., DAB No. 2196 at 13 (2008).  I may not substitute my judgment for that of CMS so long as the evidence establishes a legal basis for a revocation determination.  Johnson, DAB No. 2708 at 16. 

Petitioner enrolled in the Medicare program in 2005 as a supplier of services.  CMS Ex. 1 at 1.  CMS determined that Petitioner engaged in a pattern or practice of improper claims submissions, justifying revocation of its Medicare participation and the additional remedies of an enrollment bar and placing Petitioner on the Preclusion List.  The evidence establishes that CMS considered the guidelines for revocation contained in 42 C.F.R. § 424.535(a)(8)(ii) and found sufficient support to justify a determination to revoke Petitioner’s Medicare enrollment. 

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 the reviewed claims were improper, either because the services for which they billed were not reasonable or necessary or because the submitted claims failed to meet the Medicare requirements.  CMS Exs. 13 at 2; Ex. 15 at 16; Ex. 20. 

1. The 2017 Review

The 2017 review examined a total of 30 reimbursement claims.  The contractor determined that 100% of the claims reviewed were not reasonable and necessary.  CMS Ex. 13 at 2.  During the 2017 review, the contractor identified claims for services that Petitioner billed for that had already been provided by a skilled nursing facility.  Id.  For example, Petitioner billed for chronic care management for services that that the skilled nursing facility provided.  Id.  The contractor further determined that an overpayment was made to Petitioner in the amount of $1,647.52.  Id. at 5.  CMS sent two demand letters to Petitioner for the overpayment determination.  CMS Ex. 14.  The letters contained information on challenging the overpayment determinations and the appeal deadlines.  Id.  Petitioner did not appeal. 

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2. The 2020 Review

The contractor evaluated 35 additional claims for 46 services during the 2020 review.  It found that 24 of those claims and 45 of the 46 services were improper.  CMS Ex. 16 at 2, 9; CMS Ex. 3 at 10-11.  Findings of impropriety were that some of the claims were not for services that were reasonable and necessary and did not meet Medicare requirements.  CMS Ex. 16 at 15.  The contractor also found that for multiple services no documentation was provided to support that any services were rendered.  Id. at 9-11.  The contractor found an overpayment of more than $5,451.10 for the claims that it had reviewed.  Id. at 11.  The letters again contained information on challenging the overpayment determinations and the appeal deadlines.  Id.  Petitioner did not appeal. 

3. The 2023 Review

The 2023 review involved 25 more claims.  After evaluating these 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.  CMS Exs. 20, 21, 22.  Again, the contractor determined that there was no documentation to support that nay service was rendered and that notes were clearly cloned.  Id.  The contractor determined that CMS had overpaid Petitioner over $2,646.69 for these improper claims.  CMS Ex. 22. 

1. CMS had a legitimate basis to revoke Petitioner’s Medicare billing privileges2.

There is an appeals process via which a supplier that is dissatisfied with a claims review may challenge findings of improper claims.  42 C.F.R. §§ 405.900-405.1140.  Petitioner did not dispute the findings of improper claims resulting from the 2017 and 2020 reviews.  CMS Br. at 1.  Petitioner appealed the adverse findings resulting from the 2023 review.  As a result of the last filing provided by the parties, the qualified independent contractor issued an unfavorable decision to Petitioner.  P. Ex. 4.  As a result, the record before me shows that Petitioner did not successfully challenge any of the findings of improper claims made during the 2017, 2020 and 2023 reviews.  Additionally, the findings of improper claims that were made after the first two reviews that were not appealed are administratively final. 

Regulations do not require CMS or its contractors to offer remedial assistance to a supplier who is found to have filed improper claims.  Nevertheless, CMS’s contractor offered such assistance to Petitioner.  After the 2017 review, the contractor supplied Petitioner with the name of a representative who Petitioner could contact with questions about billing issues, directed Petitioner to its website, and offered Petitioner a telephone

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number that Petitioner could call for outreach and education.  CMS Ex. 13.  In its letter summarizing the findings of the 2020 review, the contractor provided detailed explanations of its findings as well as education to avoid future billing issues.  CMS Ex. 16.  In its summary of the 2023 review, the contractor provided Petitioner with a summary of their persistent billing trends.  CMS Ex. 20. 

The percentage of claims that the contractor found to be improper at each of the reviews
– 100 percent in 2017, 97 percent in 2020, and 100 percent in 2023 – is strong evidence of a pattern or practice of improper claims.  See 42 C.F.R. § 424.535(a)(8)(ii)(A).  That this pattern persisted despite the contractor’s efforts to offer Petitioner remedial assistance is especially telling.  It is equally noteworthy that a pattern of improper claims submissions persisted over a period of more than five years.  That is certainly sufficient basis for CMS to conclude that Petitioner persistently filed improper claims. 

The nature of Petitioner’s improper claims also unequivocally supports a finding of a pattern or practice of improper claims by Petitioner.  See 42 C.F.R. § 424.535(a)(8)(ii)(C).  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.  CMS Ex. 7 at 6. 

The contractor found that most of the claims that it reviewed were not reliably supported by verifiable documentation.  In reviewing the claims, the contractor found a persistent pattern of claims that failed to meet Medicare requirements. 

As noted above, Petitioner’s behavior persisted over a period of more than five years and despite the contractor’s attempts to educate Petitioner about its responsibilities.  That evidence points only to the conclusion that Petitioner refused to change its billing practices despite the educational opportunities and that it persisted with improper claims filing despite the contractor’s efforts to address the problem. 

The circumstances surrounding Petitioner’s submission of improper claims also supports the determination to revoke their Medicare enrollment.  See 42 C.F.R. § 424.535(a)(8)(ii)(D).  This case does not involve random error or even systemic billing errors that Petitioner corrected once it was informed about them.  Rather, it discloses 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. 

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Analysis of Petitioner’s Arguments

I find Petitioner’s arguments against revocation of its Medicare enrollment to be unpersuasive. 

Petitioner argues that the percentage of claims that the contractor denied after review is actually considerably lower than that which the contractor and CMS contend to be the case.  P. Br. at 12-16; see 42 C.F.R. § 424.535(a)(8)(ii)(A).  Petitioner argues that it treated many more patients and billed for many additional claims and services than those that were reviewed by CMS and/or its contractors.   From these assertions, Petitioner contends that CMS cannot 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.  P. Br. at 14.  However, this argument was addressed in Shimko and incorrectly assumes that the remainder of the claims not reviewed are without error.  See John M. Shimko, D.P.M., DAB 2689 (2016).  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). 

Petitioner also argues that CMS did not properly consider all of the factors provided for in the regulation when it determined that Petitioner’s Medicare billing privileges should be revoked.  P. Br. at 14.  However, Petitioner incorrectly relies on an old version of the regulation for this contention.  The four factors CMS applied are listed in the amended version of 42 C.F.R. § 424.535(a)(8)(ii).  The amendment had an effective date of January 1, 2023.  Petitioner’s billing privileges were revoked on January 23, 2023.  Therefore, CMS utilized the correct version of the regulation. 

Additionally, the guidelines at subsections (A)-(D) of section 424.535(a)(8)(ii) are just that, guidelines.  They are not rigid restrictions of what CMS may consider as improper billing practices by a supplier.  Indeed, subpart (D) makes it plain that CMS may consider any information that is relevant to a supplier’s billing practices. 

Petitioner further states that CMS did not consider the intent behind the billing codes it used and the fact that the claims could have been properly submitted using other codes.  P. Br. at 17-18.  However, the overall evidence demonstrates that Petitioner repeatedly received notice of CMS’s denials of payment for improper billing.  Petitioner’s noncompliant billings continued over a period of approximately five years, and Petitioner has offered no evidence that it tried to correct this pattern of improper billing.  Accordingly, Petitioner’s conduct demonstrates disregard for the regulatory requirements for Medicare participation.  Once CMS establishes a legal basis on which to proceed with a revocation, the determination to revoke becomes a permissible exercise of discretion, which I am not permitted to review.  Abdul Razzaque Ahmed, M.D., DAB No. 2261 at 19 (2009), aff’d sub nom., Ahmed v. Sebelius, 710 F. Supp. 2d 167 (D. Mass. 2010).  The fact that Petitioner may have intended to provide services or treatments to keep patients

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out of the hospital or that the services it provided could have been billed under different codes does not explain away or overcome the continued noncompliant billing. 

Petitioner also argues that CMS should not be able to rely on the administrative finality of the claim reviews made in 2017 and 2020.  However, I do not have jurisdiction over those claim reviews.  If Petitioner wanted to challenge those claims, it needed to appeal them following the same process it followed for the 2023 claim review.  The appeal process was outlined in the letters Petitioner received following the 2017 and 2020 reviews. 

CMS’s discretionary act to revoke a provider or supplier is not subject to review based on equity or mitigating circumstances.  Letantia Bussell, M.D., DAB No. 2196 at 12-13 (2008).  I am not authorized to overturn a legally valid agency action based on equitable grounds or otherwise grant equitable relief.  Wendell Foo, M.D., DAB No. 2904 at 25 (2018) (citing Foot Specialists of Northridge, DAB No. 2773 at 18 (2017)). 

I find that CMS had a legal basis to revoke Petitioner’s Medicare billing privileges under 42 C.F.R. § 424.535(a)(8)(ii) as Petitioner continued to submit claims for payment over a period of time from 2017 through 2023 even though, among other things, the documentation did not support the medical necessity of the services. 

2. Re-enrollment Bar

A bar against re-enrollment is a mandatory remedy where a supplier engages in a pattern or practice of filing improper claims.  42 C.F.R. § 424.535(c)(1)(i).  In this case, CMS imposed a re-enrollment bar against Petitioner of 10 years, the maximum that the regulation permits, except in circumstances not applicable here.  Id. 

The determination of the length of the re-enrollment bar falls within CMS’s discretion.  I have no authority to review that determination.  William Garner, M.D., DAB No. 3026 at 8, 16 (2020); Angela R. Styles, M.D., DAB No. 2882 at 10 (2018). 

Petitioner ultimately argues that no re-enrollment bar should be imposed because it did not engage in a pattern or practice of improper claims.  This argument fails because, as I have explained, there is overwhelming evidence to support CMS’s determination of a pattern or practice of improper claims filing. 

Petitioner also insinuates that a 10-year re-enrollment bar will likely put it out of business.  It asserts that this remedy is unfair because the improper claims were not egregious.  However, that is an equitable argument that I have no authority to consider.  As I have explained, my authority is limited to deciding whether CMS has established a legal basis for imposing remedies, including a re-enrollment bar.  I may not look behind

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the determination to decide whether it is or is not unfair.  Patrick Bruggeman, D.P.M., DAB No. 2725 at 15 (2016). 

3. Preclusion List

The CMS Preclusion List operates to prohibit Medicare Advantage organizations from making payments for health care items or services to suppliers whose names appear on the list.3  It also operates to prohibit a Medicare Part D sponsor from accepting a pharmacy claim for payment for any medication prescribed by suppliers whose names appear on the list.4  42 C.F.R. §§ 422.2, 422.222, 423.100, 423.120(c)(6). 

CMS may place a supplier on the Preclusion List if that supplier’s Medicare enrollment is revoked for reasons that include engaging in a pattern or practice of filing improper claims pursuant to 42 C.F.R. § 424.535(a)(8)(ii), is currently subject to a re-enrollment bar, and if CMS determines that the conduct that led to the revocation is detrimental to the best interests of the Medicare program.  42 C.F.R. §§ 422.2, 423.100.  In deciding whether the third criterion for placing a supplier on the preclusion list is met, CMS considers:  (A) the seriousness of the conduct that underlies the revocation; (B) the degree to which that conduct could affect the integrity of the Medicare program; and (C) any other evidence that CMS deems relevant.  42 C.F.R. §§ 422.2, 423.100. 

I find above that the first two criteria for placing Petitioner on the Preclusion List are met, and I need not restate my analysis.  As to the third criterion, the evidence overwhelmingly supports the determination that Petitioner’s improper billing practices were detrimental to the Medicare program’s best interests. 

Petitioner’s pattern or practice of improper claims was extremely serious, and it clearly affected the integrity of the Medicare program.  CMS Ex. 3 at 12.  When a supplier of services such as Petitioner engages in a pattern or practice of submitting improper claims, that behavior attacks the Medicare program at its most vulnerable point.  The program may be defenseless against improper – even false – claims until those claims are discovered via a review process.  Id. 

Additionally, CMS’s discretionary act to place Petitioner on the preclusion list is not subject to review based on equity or mitigating circumstances.  Letantia Bussell, M.D., DAB No. 2196 at 12-13 (2008).  I am not authorized to overturn a legally valid agency

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action based on equitable grounds or otherwise grant equitable relief.  See Wendell Foo, M.D., DAB No. 2904 at 25 (2018) (citing Foot Specialists of Northridge, DAB No. 2773 at 18 (2017)).  Furthermore, CMS is only required to consider the factors listed in the regulation, not the factors Petitioner considers CMS should consider when making its determination.  See 42 C.F.R. § 422.2. 

My review here is limited to whether CMS had the legitimate basis to include Petitioner on the preclusion list.  83 Fed. Reg. 16,440, 16,642-43 (Apr. 16, 2018) (“Any appeal under this proposed provision, however, would be limited strictly to the individual’s inclusion on the preclusion list.  The proposed appeals process would neither include nor affect appeals of payment denials or enrollment revocations, for there are separate appeals processes for these actions.”). 

I find that the record supports a conclusion that Petitioner’s conduct underlying the basis for its revocation is detrimental to the best interests of the Medicare program.  Therefore, I uphold Petitioner’s inclusion on the preclusion list. 

Conclusion

For the foregoing reasons, I affirm CMS’s revocation of Petitioner’s Medicare enrollment and billing privileges under 42 C.F.R. § 424.535(a)(8)(ii) and uphold Petitioner’s inclusion on CMS’s preclusion list.