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D.C. Federal Court Rejects HHS’s Plea to Rescind Order to End Medicare Appeals Backlog

As reported last month, the US District Court for the District of Columbia issued an order in American Hospital Association v. Burwell for the US Department of Health and Human Services (HHS) to clear the enormous backlog of Medicare appeals at the administrative law judge (ALJ) level. US District Court Judge James E. Boasberg gave HHS a four-year runway to eliminate the backlog of almost one million appeals at the ALJ level.

HHS’s first move was to ask Judge Boasberg to reconsider and to rescind his order. HHS contended that “the decision to order scheduled reductions in the appeals backlog will force [HHS] to pay pending claims without regard to their merit ….” The court rejected this argument, as it had already been presented by HHS and considered by the court in reaching its order. The court stated that it “is not unsympathetic to [HHS’s] plight, nor does it take lightly the decision to intervene in an executive agency’s efforts to respond to a complex problem.” Nevertheless, the court concluded it was bound by the instructions of the DC Circuit in a prior appeal of the matter and concluded “that equitable grounds existed” for the court’s order “and that the reductions timetable was the most appropriate form of such relief.”

It remains to be seen whether HHS will appeal the court’s decision. If it does not, this will end the long-running controversy and start bringing long-overdue relief to providers. The possible raft of appeals being rapidly decided still presents many issues, not the least of which is the extent to which interest will be due upon underpayments determined in successful appeals.

© Copyright 2019 Squire Patton Boggs (US) LLP


About this Author

Stephen P. Nash, Squire Patton, Health Systems Attorney, Information Exchange Lawyer

Stephen Nash is the co-leader of our Healthcare Practice Group. He has represented healthcare organizations for more than 30 years. His clients include academic medical centers, hospitals and health systems, health information exchanges, medical groups and other physician organizations, health plans and other managed care organizations, long term care organizations, ancillary health service providers, healthcare investors, state agencies and sovereign powers.

303 894 6173
Sven Collins, Squire PB, Healthcare attorney

Sven Collins focuses his practice on Medicare and Medicaid reimbursement litigation, as well as on litigation and risk-management guidance in areas of employment and labor, trade secrets, unfair competition and other commercial disputes.

Sven litigates and tries cases before courts, arbitrators and government agencies and  regularly represents hospitals and healthcare providers in innovative reimbursement appeals seeking additional payment under Medicare.  

He also counsels and represents employers in disputes in a variety of employment and labor-related areas, including employment discrimination, non-compete agreements, unfair competition, trade secrets, wage and hour matters, employee benefits, employment contracts and reductions-in-force.

Michi Tsuda, Hospital Advisory Attorney, Health maintenance, Squire Patton Boggs
Senior Associate

Michi Tsuda focuses his practice on advising hospitals, physician groups, health maintenance organizations, management services organizations, private-equity funds, sovereign governments and health-related joint ventures in operational, regulatory, transactional and litigation matters.

He has represented clients in connection with a broad range of corporate, governance, reimbursement, fraud and abuse, and other regulatory compliance matters.

Mimi H. Brouillette, Medicare coverage, Squire PB, regulatory attorney
Senior Associate

Mimi Brouillette has broad experience in various healthcare and finance related issues. She routinely represents clients in Medicare and Medicaid coverage and reimbursement litigation in agency appeals and in federal courts. She also advises hospitals and other healthcare organizations in operational, regulatory and transactional matters.

Mimi is a native Mandarin speaker and assists with negotiations and development of projects with Chinese and other international clients, with a focus on healthcare.