The Center for Medicare Advocacy, Inc. (CMA) has announced the certification of a nationwide class-action suit filed on behalf of Medicare beneficiaries who are challenging “Medicare’s program failure to render decisions at the administrative law judge (ALJ) level within the 90 days required by law.”

In Exley v. Burwell, lead plaintiff attorney Ali Bers from the CMA describes this as the perfect case for class certification, “as Medicare ALJs throughout the country have been depriving beneficiaries of timely decisions for years.”

According to CMA Executive Director Judith Stein, “even though Medicare has recently been sending beneficiaries to the front of the ALJ line so that they do not have to wait as long as providers – though still well beyond the mandated 90 days – we have to remember that Medicare is all about beneficiaries.  It is especially important to guarantee that this vulnerable population receives speedy ALJ review because the two levels of the administrative process below ALJs invariably rule against beneficiaries.”

While this class-action suit was filed on behalf of beneficiaries and seeks to address their timely appeal rights, it represents yet another glaring spotlight being shone on the broken Centers for Medicare & Medicaid Services (CMS) appeals process, which has ballooned since the permanent Recovery Auditor program (RAC) began complex medical reviews, with hospitals reporting additional documentation requests (ADRs) at the maximum allowable per ADR request cycle. 

According to the CMA, the presiding judge concluded that plaintiffs met the five required factors for class certification. Judge Jeffrey Meyer “rejected the government’s argument that the claims of the six named plaintiffs had become moot when they suddenly received ALJ hearings and decisions shortly after the complaint was filed – though they had waited without hearings from over six months to almost two years prior to the filing.” One of the named plaintiffs, Stephen Lessler of Connecticut, appealed for Medicare coverage of his nursing-home stay in November 2013. His case was delayed at the ALJ level; however he eventually received a favorable decision on Sept. 24, 2014 – unfortunately too late, as he had died one day earlier. The order on the plaintiffs’ motion for class certification can be found online at 

As I recently reported on Monitor Mondays, the CMA is convening a Jimmo Implementation Council with a select group of invitees in the nation’s capital later this month. It is a collective of beneficiary advocates, providers, policymakers and other partners who will discuss, analyze, and advance the implementation of the Jimmo v. Sebelius “improvement standard” settlement. In Jimmo v. Sebelius, the CMA was successful in reaching a settlement agreement with CMS to address the application of an “improvement standard” as a cause for denial of claims by Medicare contractors in skilled nursing, home health, and outpatient therapies. Many therapy providers seeking to continue therapy past the $3,700 therapy threshold know that they face a mandatory review (in 2013-2015 this has been by the RACs) and likely denials at the first and second level of Medicare appeals. So beneficiaries who have the need for skilled maintenance therapy plans and/or skilled maintenance therapy may not get the services to which they are entitled, because the RACs may still be applying an “improvement standard.” Additionally, for providers the line for an ALJ hearing in order to make their case based upon Jimmo v. Sebelius likely extends up to three years. 

The Center for Medicare Advocacy, Inc., is a national nonprofit, nonpartisan organization that provides education, advocacy, and legal assistance to help older people and people with disabilities obtain fair access to Medicare and necessary healthcare. The Center was founded in 1986 and is headquartered in Connecticut and Washington, D.C., with offices throughout the country.

According to the CMS, unless Exley v. Burwell is settled, it will now proceed to the merits stage, with the parties scheduled to file cross-motions for summary judgment in the late summer.

Stay tuned.

About the Author 

Nancy Beckley is founder and president of Nancy Beckley & Associates LLC, providing compliance planning and outsourced compliance services to rehab providers in hospitals, rehab agencies, and private practice. Nancy is certified in healthcare compliance by the Healthcare Compliance Certification Board. She is on the board of the National Association of Rehabilitation Providers and Agencies. She previously served on the CMS Professional Expert Technical Panel for Comprehensive Outpatient Rehabilitation Facilities. Nancy is a familiar voice on Monitor Monday where she serves as a senior national correspondent.

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