Please view video link and update below.
Court Poised to Compel HHS to Decide Medicare Cases within 90 Days
On October 3, 2016, the U.S. District Court for the District of Columbia
held a status conference in the ALJ delay suit filed by the American
Hospital Association (AHA) against the Secretary of Health and Human
Services (HHS), Sylvia Burwell. Judge James E. Boasberg stated that he will
likely issue a writ of mandamus ordering the Secretary to comply with the
90-day deadline for deciding Administrative Law Judge (ALJ) appeals. This
clarified his earlier decision on September 19, 2016, where he declined to
“stay” (i.e., delay) proceedings in AHA’s ALJ delay suit. At the status
conference, Judge Boasberg came as close as he could to confirming his
intention to order mandamus, compelling the government to decide ALJ cases
within 90 days.
Judge Boasberg scheduled expedited briefing on potential “remedies” to
address the ALJ backlog, recognizing that he could not simply wave a magic
wand to make over 750,000 pending ALJ appeals go away. The judge is looking
to issue in this case before the end of the year, but HHS implied that it
would appeal to the D.C. Circuit Court, thereby delaying by several months a
full resolution of this case. Nonetheless, the District Court continues to
exert tremendous pressure on HHS to make significant progress in reducing
the ALJ backlog and the extentive amount of time it takes to resolve
The status conference began with Judge Boasberg stating his view that it is
not practical to order HHS to comply with the ALJ deadline within the next
six months. Instead, he asked the parties to suggest potential remedies for
clearing the backlog. Counsel for AHA suggested that HHS could settle more
appeals than it is currently. AHA also proposed that HHS waive recoupment
and the assessment of interests against providers appealing cases. Although
this would not clear the backlog, it would lessen the harm from the delay.
AHA also stated that HHS should place greater limits on Recovery Audit
Contractors and sanction them for incorrectly denying claims.
HHS responded that it is making progress toward clearing the ALJ backlog.
HHS reported that it has restarted the settlement program for inpatient
status appeals (i.e., short inpatient stays)-the program that led to over
200,000 settled cases in 2014. HHS stated that statutory constraints
prevented it from adopting some of AHA’s suggested remedies. HHS also
requested briefing not only on potential remedies, but also on whether the
court should issue the writ of mandamus at all. HHS stated that it wanted to
“preserve the record” on the mandamus issue, which implies that HHS intends
to appeal any mandamus order to the D.C. Circuit. The judge ordered briefing
on both issues on an accelerated timeframe. The first brief by AHA is due
October 14th, the government responds on November 4th, and then AHA submits
its reply brief by November 14th. Again, a decision in the case is very
possible by year’s end.
If the Court does decide to issue the mandamus order, the government is
expected to appeal that decision to the Court of Appeals, again. This will
delay this case well into 2017, but given what the Appeals Court held the
last time it reviewed this case, the demand to decide ALJ cases within 90
days is not likely to go away.
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