District Court Again Asks Hospitals To Propose Solution To Appeals Backlog

The D.C. District Court told hospitals to come up with proposals by June 22 to clear out the backlog of Medicare appeals and to explain why current procedures are insufficient, and the government will have until July 6 to respond to those proposals, according to a recent court order.

The American Hospital Association sued HHS over the appeals backlog because decisions at the Administrative Law Judge level were not turned around within 90 days as required by law. After gathering information on how AHA wanted HHS to clear the backlog, as well as feedback from the department, the district court gave HHS until 2021 to empty the appeals queue. HHS appealed, and the appeals court told the lower court to look closer at HHS’ claim that it would be impossible for the agency to lawfully get rid of the ALJ backlog by 2021.

In a March 22 court order, Judge James Boasberg said that by June 22, “Plaintiffs shall submit specific proposals (and reasons therefor) that they wish the Court to impose via mandamus and explain why current procedures are insufficient.”

“The AHA welcomes U.S. District Judge Boasberg’s recent request that we provide more details about the many recommendations that we have long suggested, including directly to HHS, that could be taken by the agency to make progress toward the reduction and further growth of the Medicare billing appeals backlog and to prevent another large influx of appeals as a result of faulty assessments. The heavily backlogged and broken system continues to place a strain on hospitals that have billions of dollars in Medicare reimbursement tied up in appeals,” AHA said.

AHA had previously asked the judge to require that HHS offer broad appeals settlements to providers, delay making providers repay denied claims, and penalize Recovery Auditors for poor performance at the third level of appeals. The hospital lobby group also suggested making HHS reduce the backlog every year until it is eliminated, before 2021.

The Council for Medicare Integrity, which represents RACs, said that since those auditors’ findings make up less than 5 percent of the Medicare appeals backlog, recommendations AHA might make about the RACs would not have much impact.

“The Council for Medicare Integrity seeks meaningful reform to the appeals process. We must ensure the appeals process instills mutual accountability for appellants. A tiered, volume-based refundable filing fee should be imposed on appellants to curb documented ‘frequent filers,’” a spokesperson for the council said. “Other reforms should include limits on the introduction of new evidence, transparency in audit scenarios and consistent education for all those who are determining cases. Ultimately, the backlog can only be reduced by addressing the systemic issues not by hampering effective Medicare program oversight.”

Boasberg said that by July 6, he wants the government to respond and provide “a status update on the progress of current reforms and contesting why the defense proposals are impossible or unhelpful.” The hospitals will have a week to reply to the government at that time.

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