AHA Backlog Case Still in Dispute

Original story posted on: August 16, 2017

David Glaser’s excellent article provides an update on the recent court ruling on the Medicare appeals backlog.

Understanding legal opinions generally can be nearly impossible if one is not a lawyer, and this 37-page decision is no exception. Even after reading David’s article, I still have trouble wrapping my head around the concept of “mandamus.” I did, though, get a nice chuckle when the judges who wrote this opinion began the footnote on page 7 with “Fun Fact:”

What did I get out of this decision? It seems that the Centers for Medicare & Medicaid Services (CMS) is now obligated to prove to the court that reducing the backlog on the set schedule is literally impossible in order to avoid trouble for missing the deadline. If you ask me, and no one from CMS or the courts has, as of today, it is not literally impossible to meet the deadline.

The unemployment rate for law school graduates is around 15 percent. These lawyers could be hired immediately and trained in Medicare regulations to serve as attorney adjudicators under the new rules. The current administrative law judges (ALJs) each could be provided many more assistants to allow the process to move more smoothly. New ALJs could be hired and trained.

Now, does the fact that there is no budget for such moves have an effect here? That sure doesn’t sway me. This backlog did not pop up out of the blue; it started in 2006 and got progressively worse as CMS allowed the Recovery Auditors Contractors (RACs) to run roughshod over providers, denying everything in their path and leading them to appeal the hundreds of thousands of inappropriate denials.

But I am sure that is what CMS will argue: the funding necessary to reduce the backlog has not been allocated by Congress, so it is impossible for them to clear the backlog. I am hoping, though, that the court sides with me on this and calls for an immediate default judgment in favor of the providers for all pending appeals that have exceeded the 90-day timeframe for an ALJ hearing. Of course, this decision would not be fair to the many hospitals that chose to accept the first 68 percent settlement offer or the second 66 percent settlement offer, but sometimes, life is just not fair. And we are all on the same side anyway, aren’t we?

Start crossing your fingers and keep reading RACmonitor for updates.

Ronald Hirsch, MD

Ronald Hirsch, MD, FACP, CHCQM-PHYADV, CHRI, FABQAURP is vice president of the Regulations and Education Group at R1 Physician Advisory Services. Dr. Hirsch’s career in medicine includes many clinical leadership roles at healthcare organizations ranging from acute-care hospitals and home health agencies to long-term care facilities and group medical practices. In addition to serving as a medical director of case management and medical necessity reviewer throughout his career, Dr. Hirsch has delivered numerous peer lectures on case management best practices and is a published author on the topic. He is a member of the Advisory Board of the American College of Physician Advisors, a member of the American Case Management Association, and a Fellow of the American College of Physicians. Dr. Hirsch is a member of the RACmonitor editorial board and is regular panelist on Monitor Mondays.

The opinions expressed are those of the author and do not necessarily reflect the views, policies, or opinions of R1 RCM, Inc. or R1 Physician Advisory Services (R1 PAS).

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