US district court denies delay in proceedings of ALJ backlog suit

The U.S. District Court for the District of Columbia declined to delay proceedings in the Administrative Law Judge backlog suit filed by the American Hospital Association against HHS Secretary Sylvia Burwell, according to a statement from the National Association for the Advancement of Orthotics and Prosthetics. The decision came on Sept. 19.

The American Hospital Association (AHA) filed a lawsuit in 2014 against the HHS secretary, seeking a “writ of mandamus,” mandating Administrative Law Judge (ALJ) appeals be decided in 90 days, as requested by the Medicare statute. The suit was dismissed in December 2014; however, AHA appealed to the District of Columbia (D.C.) Circuit Court of Appeals, according to the statement.

“The D.C. Circuit reversed the district court,” according to the statement from the National Association for the Advancement of Orthotics and Prosthetics (NAAOP). “[It] held that AHA satisfied the core requirements for mandamus jurisdiction because hospitals have a clear right to ALJ decisions in 90 days; the secretary has a clear duty to decide ALJ appeals in 90 days; and hospitals [as well as all other providers] have no adequate alternative remedy other than mandamus.”

It continued, “The D.C. Circuit noted that the ALJ backlog is having a real impact on human health and welfare because some providers are admitting fewer cases that are likely to be targeted by recovery audit contractors (RACs). The D.C. Circuit remanded to the district court to determine whether Congress and the secretary are making ‘significant progress’ toward solving the ALJ backlog.”

The HHS secretary requested the district court delay proceedings for 17 months, until Sept. 30, 2017, arguing the agency’s initiatives and legislation pending in Congress would clear the backlog without judicial intervention. AHA opposed the delay, citing that the HHS secretary’s initiatives would result in an increase in the ALJ backlog unless Congress provides substantial additional funding. The district court also faulted the HHS secretary for not exercising greater control over the RAC program, according to the statement, and implied that it will order HHS to comply with the ALJ deadline.

The court has called for a status conference with the litigants to discuss how to further proceed. The conference is scheduled for scheduled for Oct. 3, the statement noted. The NAAOP will be in attendance.

“While this decision will not solve the ALJ backlog overnight, it will place tremendous pressure on CMS to meaningfully address [more than] 750,000 cases it has pending at the Office of Medicare Hearings and Appeals [OMHA],” the statement noted. “This means O&P practitioners and facilities that have Medicare claims pending at OMHA will likely begin to see some relief from the lengthy delays in getting their ALJ appeals heard and decided. However, the question of when this will occur still remains uncertain.”



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