Judge refuses to rescind order requiring HHS to clear Medicare appeals backlog

U.S. District Judge James Boasberg refused Wednesday to set aside an order requiring HHS to clear its backlog of Medicare reimbursement appeals by the end of 2020.

On Dec. 5, Judge Boasberg granted a motion for summary judgment filed in October by the American Hospital Association in AHA v. Burwell — a suit that centers on the Recovery Audit Contractor program. 

He ordered HHS to incrementally reduce the backlog of 657,955 appeals pending before the agency's Office of Medicare Hearings and Appeals over the next four years, cutting the backlog by 30 percent by the end of 2017; 60 percent by the end of 2018; 90 percent by the end of 2019; and to completely eliminate the backlog by Dec. 31, 2020.

HHS filed a motion Dec. 15 asking the judge to reconsider his decision. HHS argued it would be impossible to reduce the appeals backlog on the schedule provided by the court without improperly paying claims, regardless of merit.

"Absent substantial new resources and authorities from Congress, the Department has no means to, and therefore cannot, meet the reduction targets required by the court's Dec. 5, 2016 order and simultaneously satisfy its fiduciary duty to the Medicare Trust Funds to pay only for claims that satisfy coverage requirements as set forth by statute," said Ellen Murray, assistant secretary for financial resources and CFO of HHS, in a declaration filed with the agency's motion.

On Wednesday, Judge Boasberg denied HHS' motion for reconsideration.

"The court is not unsympathetic to defendant's plight, nor does it take lightly the decision to intervene in an executive agency's efforts to respond to a complex problem," the judge wrote in his order denying the motion. "This court must follow the instructions of the D.C. Circuit, however, and here the standard is set out…[leading] this court to conclude that equitable ground existed for mandamus and that the reductions timetable was the most appropriate form of such relief."

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