HHS Appeal to Slow Backlog Mandate Doesn’t ‘Tilt the Scales’

Despite its resistance, the U.S. Department of Health and Human Services (HHS) must comply with a previously announced timetable for clearing a massive Medicare appeals backlog after all, the U.S. District Court for the District of Columbia has decided.

The Medicare appeals backlog grew exponentially in recent years due, in part, to more aggressive Medicare integrity efforts and an aging U.S. population. Of the 658,000 claims in the appeals backlog, some are home health claims.

The American Hospital Association’s (AHA’s) four-year plan to clear the backlog is a “thoughtful and reasonable” approach to a “complex problem,” U.S. District Judge James Boasberg writes in a Memorandum Opinion dated Dec. 5, 2016.


HHS has previously called the timetable, which necessitates the huge Medicare appeals backlog be cleared by 2021, “impossible,” adding that the project requires additional funding from Congress and would force the agency to violate Medicare law by paying claims that lack merit.

Though HHS Secretary Sylvia Burwell claims that “she is hard at work, progress is in sight” with respect to clearing the Medicare backlog, her “latest brief does not provide enough evidence of progress to tilt the scales,” Boasberg writes.

So, as it stands, however, HHS must achieve a 30% reduction of backlog cases by December 31, 2017; a 60% reduction in backlog by December 31, 2018; a 90% reduction in backlog by December 31, 2019 and clear all of the backlog by December 31, 2020.


“Satisfying the statutory demands for both accuracy and timeliness will no doubt prove challenging, but such is the task at hand,” Boasberg writes.

The Court did decide, however, that it will not automatically enter default judgments in all qualifying appeals on Jan. 1, 2021, as doing so could potentially endanger the Medicare Trust Funds.

Now, if Burwell fails to meet the aforementioned end-of-year deadlines, the plaintiffs may move for default judgment or to otherwise enforce the writ of mandamus, the Court decided.

Written by Mary Kate Nelson

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