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Update on Litigation to Reduce Backlog of Appeals Before ALJs

As you may recall, the American Hospital Association (AHA) and others sued the U.S. Department of Health and Human Services (HHS) [American Hospital Association v. Alex M. Azar, Civil Action No. 14-CV-851-JEB, (U.S. District Court for the District of Columbia)]. As a result, a federal judge ordered HHS to clear pending appeals before Administrative Law Judges (ALJs) incrementally by the end of 2020. HHS asked the U.S. District Court for the District of Columbia to reconsider this order, but the request was denied. HHS appealed the decision. The U.S. Appeals Court for the District of Columbia overturned the order. This meant that the lower District Court must decide whether, as HHS claimed, it would be impossible to comply with the order's timetable for reduction of the backlog. AHA then asked the District Court to reinstate the deadline for clearing the appeals backlog. AHA argued that HHS "has not shown it is impossible to clear the backlog - minus, perhaps, some claims with serious program-integrity concerns - within five years." In June, 2018, the Court asked both sides to weigh in on a reasonable resolution. After considering their arguments, on November 1, 2018 the Court said that "the Government agrees that recent funding has made compliance possible within four years, the Court will impose such a deadline." The Court acknowledged that the government has not complied with a statutory requirement that ALJ decisions must be made within ninety days of filing appeals. The Court said, however, that it "[did] not possess a magic wand that, when waved, [would] eliminate the backlog." Consequently, the Court decided to require HHS, based on an FY2018 backlog of 426,594 appeals as baseline, to reduce the backlog by: 19% by the end of FY 201949% by the end of FY 202075% by the end of FY 2021 Complete elimination of the backlog by the end of FY 2022 So, providers with pending appeals before ALJs can expect a hearing within four years! As you may also recall, several Courts have recently granted providers' requests for temporary restraining orders (TROs) and permanent injunctions to prevent the Centers for Medicare & Medicaid Services (CMS) from recouping from providers until after ALJ hearings have been held. Coupled with waiver of interest between the 90th day after filing appeals before ALJs and the date on which ALJs render their decisions, this seems like a fair solution to the problem. In light of the Court's decision above, providers should continue to seek relief on a case-by-case basis.

©2018 Elizabeth E. Hogue, Esq. All rights reserved.

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