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Medicare Backlog Update: Judge Orders Elimination of the ALJ Backlog by 2022

medicare backlogBy: Matt Fischer

On November 1, 2018, a federal court judge in the U.S. District Court for the District of Columbia granted a motion for summary judgment in favor of the American Hospital Association (AHA) ordering the U.S. Department of Health and Human Services (HHS) to clear the Medicare appeal backlog by fiscal year (FY) 2022.  If you have not been following this litigation, the AHA initially filed suit in 2014 against the Secretary of the U.S. Department of Health and Human Services (HHS) requesting an order from the court mandating the Office of Medicare Hearings and Appeals (OMHA) within HHS to comply with its statutory deadlines (i.e. to issue a decision within 90 days).  Following brief review by the U.S. Court of Appeals and upon the case being before the district court for a third time, the case has finally reached a resolution.

In short, HHS agreed that due to recent funding, compliance is possible within four years.  Accordingly, the judge set the following deadlines for HHS and OMHA:

  • A 19% reduction by the end of FY 2019;
  • A 49% reduction by the end of FY 2020;
  • A 75% reduction by the end of FY 2021; and
  • Complete elimination by the end of FY 2022.

In addition, HHS must file status reports quarterly beginning December 31, 2018.

This is some good news for appellants.  As of 2018, the backlog total is projected to be 427,000 appeals.  With the issuance of this order, appellants may see decreased wait times in the future.  The current wait time for a hearing before an administrative law judge is three to five years.  How did the system get to this point?  It’s a combination of the current influx of appeals due to increased contractor (RAC / ZPIC / UPIC) activity and the inability of OMHA to keep up.  If your business faces a long wait time and impending recoupment by the local contractor will force you out of business, there are ways to fight.  For example, one option is to seek a temporary injunction enjoining CMS from recouping until the appeal process has reached a conclusion.  If you would like to discuss this option along with others, please contact me today.