A District Court will determine whether the Centers for Medicare & Medicaid Services (CMS) must be ordered to comply with the 90-day deadline to provide an Administrative Law Judge (ALJ) hearing, according to a decision handed down today by the Court of Appeals for the District of Columbia. 

The District Court had originally dismissed a lawsuit filed by the American Hospital Association (AHA) and three hospitals seeking a writ of mandamus ordering CMS to provide ALJ decisions within 90 days of an appeal. The dismissal was based largely on procedural grounds. Today the Court of Appeals for the District of Columbia reversed the District Court, and ordered it consider the merits. The Court’s decision recognizes that CMS is “caught between two congressionally assigned tasks.” It must audit health care providers and suppliers using tools such as the RAC program and other Recovery Audit tools, and it must also provide a mechanism for timely appeals.  

The Court acknowledged that CMS has been making efforts to reduce delays in the appeals process, but concluded that despite those efforts, the delays continue to snowball. The Court of Appeals ruling does not take any final action on the appeal. Instead it is ordering the district court to consider all of the factors and determine whether it is appropriate to take the extraordinary action of compelling CMS to meet the 90-day deadline. 

The opinion concludes by offering the arguments the Court may use to reject the hospital’s request, the arguments that support it, and finally by noting that if the Court concludes that CMS is making progress in improving the situation, the Court could keep jurisdiction over the case an require CMS to make regular status reports on the appeals backlog.

The bottom line is that a Court of Appeals has recognized what those in the industry have long known: the appeals system is overwhelmed, and something must be done to fix it.  

Exactly what that will be remains undetermined for now.

Details to follow in RACmonitor eNews and on Monitor Mondays.

Court Decision: http://www.aha.org/content/16/160209-aljdelayappealdecision.pdf

About the Author

David M. Glaser, Esq., is a shareholder in Fredrikson & Byron’s Health Law Group. David helps clinics, hospitals, and other healthcare entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement, and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes. David’s goal is to explain the government’s enforcement position and to analyze whether the law supports this position. David is a popular panelist on Monitor Mondays and is a member of the RACmonitor editorial board.

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