On November 7, 2016, in the pending American Hospital Association (AHA) v. Burwell litigation, HHS filed a motion for summary judgment. A central focus of HHS’s motion for summary judgment is assertions that “the backlog is finally decreasing” due to the measures implemented by HHS.  In further support of HHS’s motion for summary judgment, HHS notes that the Recovery Auditor (RAC)-related appeals volume filed with the Office of Medicare Hearings and Appeals (OMHA) has decreased from 50.3 percent in FY 2013 to only 9.5 percent in FY 2016.

HHS also states that, with congressional action, the appeals backlog will continue to decrease and is projected to be eliminated by the end of FY 2019, two years earlier than initially anticipated by HHS.  It appears that the “congressional action” referenced by HHS is related to the Audit & Appeal Fairness, Integrity, and Reform in Medicare (AFIRM) bill, which remains pending. In its motion for summary judgment, HHS requests that the court refrain from taking the extraordinary step of issuing a writ of mandamus.

As previously reported, AHA initially filed suit against HHS in 2014, asking the United States District Court for the District of Columbia to grant mandamus relief directing HHS to meet its statutory deadline for administrative review of denials of claims for Medicare reimbursement.  In October 2016, AHA filed a motion for summary judgment and stated that HHS had “treated difficulty [of addressing the appeals backlog] as an excuse for inaction.” Accordingly, AHA requested that the court require HHS to implement the following three “practicable solutions” to address the appeals backlog:

1. Offer reasonable settlements to broad groups of Medicare providers and suppliers;
2. Delay repayment of at least some subset of disputed Medicare claims, and toll the accrual of interest on those claims for waiting times beyond the statutory maximums; and
3. Impose financial penalties on RACs for poor outcomes at the administrative law judge level.

As noted, on November 7, 2016, HHS filed a motion for summary judgment and its opposition to AHA’s motion for summary judgment.  HHS disagreed with all of the three “practicable solutions” (outlined above) offered by AHA in its motion for summary judgment.  HHS also emphasized the need to balance the HHS Secretary’s responsibility to protect the Medicare Trust Fund with the proposed solutions to the appeals backlog.  Additionally, HHS contends that many of AHA’s proposed solutions would “have the opposite effect and would worsen the backlog.”

If the court decides to issue a writ of mandamus, HHS requested that the court order HHS to proceed with its new efforts designed to reduce the backlog, including:

1. The reopening of the settlement offer to hospitals for inpatient status claims;
2. The expanded Settlement Conference Facilitations apart from the proposal concerning State Medicaid Agency appeals;
3. The sampling and extrapolation demonstration project for State Medicaid Agency appeals; and
4. The new RAC Statement of Work.

If the court determines that further measures are needed to reduce the appeals backlog, HHS offered examples of additional measures that the court could order.  Such examples offered by HHS included, among others, prioritizing appeals of providers experiencing financial hardship and extending HHS’s initiative to reduce RAC lookback periods for patient status claims to six months by reducing the RAC lookback period for all claims to one year.