CMS Appeals Humana v. Becerra

On Friday, November 21, the Centers for Medicare & Medicaid Services (CMS) noticed its appeal of the Northern District of Texas’ decision in Humana Inc. et al. v. Becerra et al.

As recapped in our previous client alert, the dispute in Humana v. Becerra centered on the validity of a 2023 Final Rule, which established that CMS would not apply a Fee-for-Service (FFS) adjuster to Risk Adjustment Data Validation (RADV) audit findings. The plaintiff, Humana, successfully challenged the discontinuation of the FFS adjuster on procedural grounds, asserting—among other claims—that CMS had failed to follow notice-and-comment requirements under the Administrative Procedure Act (APA).

The court ultimately agreed, finding that CMS changed its core justification for eliminating the FFS adjuster between the Proposed Rule and Final Rule texts, departing from longstanding agency practice and expectations without providing adequate public notice or an opportunity for stakeholders to comment. In a September 25 order, Chief Judge O’Connor granted Humana’s motion for summary judgment and vacated the 2023 Final Rule rule, remanding it back to CMS for further consideration. 

The notice of appeal, as is typical, does not contain any details on the arguments CMS plans to raise. The government will be filing a brief in early 2026, which will clarify its position. The notice of appeal notably comes only three days before the submission deadline for the second batch of RADV audits for Payment Year (PY) 2019. With PY 2020 and beyond audits not yet formally initiated, health plans will need to wait for CMS to clarify whether the agency still intends to follow the schedule it announced by press release in May 2025.

CMS's RADV Audit Strategy: What Do We Know?

RADV audit policy has been a frequent and often speculative topic of conversation in 2025. In May 2025, CMS published a press release that outlined, in the agency’s own words, an "aggressive" plan to step up oversight for Medicare Advantage by:

• Auditing all eligible Medicare Advantage contracts for each payment year in all newly initiated audits—a significant pivot from its previous approach of selecting a subset of contracts that represent the highest risk
• Completing all remaining RADV audits (representing PY 2018 through PY 2024) by early 2026
• Increasing the number of records audited from 35 per plan year to up to 200, depending on the size of the health plan
• Deploy “enhanced technology” and/or “advanced systems” (widely understood, and affirmed by CMS’s budget request to Congress, to be artificial intelligence) to review medical records and flag unsupported diagnoses

(Further details can be found in this client alert.)

CMS has already initiated PY 2018 and PY 2019 audits. If CMS follows its original plans to complete RADV audits for PY 2018–2024 by early 2026, the agency will need to set submission deadlines for the remaining plan years soon. Given the aggressive schedule and current uncertainty, it remains to be seen whether regulators will adhere to the plan to conduct several PY audits concurrently (which may be challenging, given that it is unclear whether the agency has successfully onboarded any new coding staff), conduct consecutive audits, extend their timetable, or apply another approach.

In addition, RADV audits are being conducted in parallel with another audit currently ongoing at the Health and Human Services’ Office of Inspector General (HHS-OIG), announced in August 2025 and with results expected to be published sometime in 2027. In those audits, the OIG review will seek to determine whether Medicare Advantage organizations have complied with federal requirements when submitting certain diagnosis codes to CMS.

Timeline: RADV in 2025

Date	Event
May 21	CMS publishes a press release overviewing its plans to accelerate and expand Medicare Advantage audits.
September 1	Original deadline for hiring ~2,000 medical coders; it is currently unclear whether the agency has launched a recruitment initiative.
September 25	Northern District of Texas publishes opinion in Humana Inc. et al. v. Becerra et al., vacating the 2023 Final Rule and directing CMS to reconsider.
November 21	CMS appeals Humana Inc. et al. v. Becerra.
November 24	Final submission deadline for plans participating in CMS’s second batch of RADV audits for PY 2019.

How Crowell & Moring Health Care Can Help

As 2025 comes to a close, our team will continue to monitor and provide health plans with timely updates on CMS’s evolving RADV strategy. Crowell & Moring’s Health Care Group offers comprehensive support throughout the RADV audit lifecycle, from compliance counseling and submission review to appeal strategy and dispute resolution. Our attorneys regularly assist Medicare Advantage organizations by:

• Providing support with medical record documentation and audit compliance
• Reviewing submissions for PY-specific compliance
• Advising on fraud, waste, and abuse risks
• Preserving appeal rights and building strong administrative records
• Assessing risk adjustment processes and procedures
• Assisting with payment issues and disputes with vendors/providers

We highly encourage interested payors to reach out to their preferred Crowell attorney to schedule a conversation.