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From Health Law Daily, June 12, 2015

Beneficiary class certified for ALJ hearing delay lawsuit

By Kayla R. Bryant, J.D.

Class certification was granted to Medicare beneficiaries representing other individuals seeking to sue HHS for administrative delays. The U.S. District Court for the District of Connecticut found that the beneficiaries’ claims were not moot, and that certification of a nationwide class was appropriate. All Medicare beneficiaries who have timely requested a hearing before an administrative law judge (ALJ) and who will not receive a decision within a 90-day period are certified (Exley v. Burwell, June 10, 2015, Meyer, J.).

90-day limit. The individuals seeking class certification were six Medicare beneficiaries who sought coverage for acute care and were denied at the first administrative levels. Each beneficiary requested a hearing before an ALJ, and then waited between 194 and 626 days to receive a decision. Under 42 U.S.C. §1395ff(d)(1)(A), an ALJ will render a decision within 90 days of filing a timely request for hearing for claims for Medicare Part A and Part B, while regulations covering Medicare Part D also include a 90-day deadline under 42 C.F.R. section 423.2016(a)(1). Although there is not a specific deadline for Medicare Part C beneficiaries, the district court found that a catch-all provision applied the 90-day deadline to this group as well under 42 C.F.R. section 422.562(d).

Appeals backlog. On December 4, 2013, Nancy J. Griswold, Chief ALJ for the Office of Medicare Hearings and Appeals (OMHA) published an open memorandum to Medicare Appellants. The memorandum stated that a combination of large increase in appeals and budgetary cuts created a backlog in appeals, with the average wait time for an ALJ hearing reaching 16 months and expected to continue to increase. Therefore, Griswold announced the temporary suspension of most new appeals requests. The memorandum stated that OMHA would “continue to assign and process requests filed directly by Medicare beneficiaries, to ensure their health and safety is protected.”

Mootness and certification. HHS argued that the claims are moot, because all of the named beneficiaries received favorable appeals decisions. The court allowed the claims to “relate back” to the time of the filing, at which point they were not moot, because the agency could avoid litigation by granting beneficiaries a hearing to render their claims moot. The court concluded that class certification was appropriate because the class members shared common questions of fact as well as law. All were beneficiaries that did not receive a decision within 90 days, and all were entitled to such a timely decision by statute. The court also found that a single injunction ordering the ALJs to issue timely decisions would resolve all claims in the case. All requirements for receiving nationwide certification were met.

The Center for Medicare Advocacy, which represents the beneficiaries, expressed its hope that the class certification would help end the backlog. Executive Director Judith Stein said, “Even though Medicare has recently been sending beneficiaries to the front of the ALJ line so that they do not have to wait as long as providers—though still well beyond the mandated 90 days—we have to remember that Medicare is all about beneficiaries. It is especially important to guarantee that this vulnerable population receives speedy ALJ review because the two levels of the administrative process below ALJs invariably rule against beneficiaries.”

The case is No. 3:14-cv-1230 (JAM).

Attorneys: Alice Bers (Center for Medicare Advocacy) for Veronica Exley. Carolyn Aiko Ikari, U.S. Attorney's Office, for Sylvia Mathews Burwell, Secretary, U.S. Department of Health and Human Services.

Companies: U.S. Department of Health and Human Services

MainStory: TopStory ClaimsAppealsNews PartANews PartBNews PartCNews PartDNews CMSNews ConnecticutNews

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