Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:17-cv-12777—Mark A. Goldsmith, District Judge.
Argued: December 13, 2019
Decided and Filed: June 24, 2020
Before: COLE, Chief Judge; SILER and MURPHY, Circuit Judges.
SILER, Circuit Judge. General Medicine appeals a post-payment audit that began over
fifteen years ago. The audit revealed many of General Medicine’s Medicare claims should not
have been paid or should not have been paid at the level billed. The auditor requested records
from the long-term care facilities where General Medicine provided services but did not request
any records from General Medicine. General Medicine did not find out about the audit until it
was finished and the overpayment was assessed. General Medicine argues that this assessment
should be void or reduced because the auditor failed to give notice of the audit.
Under 42 U.S.C. § 1395ddd(f)(7)(A), Centers for Medicare and Medicaid Services
contractors (“CMS contractors”) are required to give providers, like General Medicine, notice
prior to conducting a post-payment audit. The statute does not provide a remedy if CMS
contractors violate this requirement.
The Medicare Appeals Council determined that no remedy should be granted because the
lack of notice was inconsequential. The Council explained that failure to provide notice did not
prevent General Medicine from ably and thoroughly arguing the principal issues resulting from
the audit, the validity of the sampling methodology, and the coverage of the reviewed claims
over the course of several years. The Council also noted that the addition of more medical
records would not have materially impacted its findings. The district court upheld the Council’s
conclusion. We find that substantial evidence supports the Council’s determination that General
Medicine was not prejudiced by the lack of notice. Therefore, we AFFIRM.