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 Medicare denials.

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 14^th, the government responds on November 4^th, and then AHA submits its reply brief by November 14^th. 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.