On Thursday, February 15th, the American Hospital Association (AHA) and three member hospitals urged the U.S. District Court for the District of Columbia to reinstate its earlier order requiring the Secretary of Health and Human Services to clear the Medicare appeals backlog at the administrative law judge (ALJ) level within five years. The District Court order was rescinded by the Appeals Court in August. In remanding the case, the appeals court left the lower court free to reinstate the same requirement if HHS fails to demonstrate that it is “impossible” to comply with the mandamus order. In yesterday’s brief the AHA urged the court to do just that. “Because the Secretary has not shown it is impossible to clear the backlog—minus, perhaps, some claims with serious program-integrity concerns—within five years, the Court should require him to do so.”
Citing “fundamental flaws” in the Secretary of Health and Human Services brief in opposition to AHA’s motion for summary judgment, the AHA argued that the Secretary is “unable to seriously argue that there is nothing he can do to further ameliorate the backlog.” “The Secretary can restrict RACs, more-aggressively pursue settlement, and develop a demonstration program that tolls interest recoupment and repayment obligations. And because it is not impossible to do these things, the Secretary must do them to try to resolve the backlog—even if he’d prefer not to.” Recognizing the court may choose to not reinstate its earlier order, the AHA requests that the court, at the very least, direct specific relief designed to get the backlog down as far as possible.