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It Isn't Law. It Changes Every Quarter. It Can Still Send a Doctor to Prison.

In court, the government says Medicare's coverage policies don't set a legal standard. In an indictment, they become the standard.

By Evelyn Hernandez · First published on Justice and the Record, September 11, 2026

Practitioners who bill Medicare work under a rulebook Congress never passed, the public never commented on, and the government itself says is not binding law. It changes every quarter, differs by region, and can be the difference between a denied claim and a federal indictment.

This article sets out the contradiction. The Medicare statute and notice-and-comment regulations are law. Most of what practitioners are measured against is neither: local coverage determinations written by private contractors, and thousands of pages of manuals and billing articles. Medicare's own appeals judges are not bound by them. The Supreme Court held in 2019 that Medicare cannot set a substantive payment standard without notice and comment, and in Agendia v. Becerra the government argued that coverage policies need no such process because they set no legal standard.

So which is it? If those documents set the legal standard, most never went through the process the law requires. If they do not, the article argues, they cannot be what turns a claim into a crime.

Key points

• Coverage policies are written by contractors and revised constantly.
• The government argues in civil cases that they are not binding law.
• In criminal cases, the same policies effectively define "false" claims.

Keep reading

← The full court record of Elizabeth Hernandez's case