As reported last month, the US District Court for the District of Columbia issued an order in American Hospital Association v. Burwell for the US Department of Health and Human Services (HHS) to clear the enormous backlog of Medicare appeals at the administrative law judge (ALJ) level. US District Court Judge James E. Boasberg gave HHS a four-year runway to eliminate the backlog of almost one million appeals at the ALJ level.

HHS’s first move was to ask Judge Boasberg to reconsider and to rescind his order. HHS contended that “the decision to order scheduled reductions in the appeals backlog will force [HHS] to pay pending claims without regard to their merit ….” The court rejected this argument, as it had already been presented by HHS and considered by the court in reaching its order. The court stated that it “is not unsympathetic to [HHS’s] plight, nor does it take lightly the decision to intervene in an executive agency’s efforts to respond to a complex problem.” Nevertheless, the court concluded it was bound by the instructions of the DC Circuit in a prior appeal of the matter and concluded “that equitable grounds existed” for the court’s order “and that the reductions timetable was the most appropriate form of such relief.”

It remains to be seen whether HHS will appeal the court’s decision. If it does not, this will end the long-running controversy and start bringing long-overdue relief to providers. The possible raft of appeals being rapidly decided still presents many issues, not the least of which is the extent to which interest will be due upon underpayments determined in successful appeals.

If you would like to discuss any of the details or implications of this matter for your business, please speak to one of the individuals listed in this publication or your usual contact at the firm.