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From Health Law Daily, November 10, 2015

Hospitals want mandamus; HHS should comply with statutory deadlines

By Sarah E. Baumann, J.D.

The American Hospital Association (AHA) is urging an appellate court to issue a writ of mandamus ordering HHS to comply with statutory deadlines governing the Medicare administrative appeals process. In a reply brief submitted to the court, the AHA noted, “The Medicare Act’s deadlines are not aspirational.” In oral arguments before the U.S. Court of Appeals for the District of Columbia Circuit on November 9, 2015, it argued that HHS is required to complete the four-step appeals process within one year, but is falling far short of the deadlines. Although the district court that denied the AHA’s original case expressed sympathy for the hospitals’ “plight,” it opined that “the waiting game must go on.”  According to AHA counsel Cate Stetson of Hogan Lovells, however, “Hospitals have waited long enough.”

Administrative appeals process. Medicare claims denials are subject to a four-step approval process. A hospital may submit a claim denied by a Medicare administrative contractor (MAC) or a recovery audit contractor (RAC) to a MAC, which will issue a decision within 60 days (42 U.S.C. § 1395ff(a)(3)(C)(ii)). It can then appeal an adverse MAC redetermination decision to a qualified independent contractor (QIC), which will also issue a decision within 60 days (42 U.S.C. § 1395ff(a)(3)(C)(i)). Both of those steps are overseen by CMS. If dissatisfied with the QIC’s decision, a hospital may appeal that decision to an administrative law judge (ALJ), who will hold a hearing and issue a decision within 90 days (42 C.F.R. § 405.1016(a)). The Office of Medicare Hearings and Appeals (OMHA) controls the ALJ process. Finally, the hospital may appeal an ALJ’s decision to the Departmental Appeals Board, which will issue a decision within 90 days (42 U.S.C. § 1395ff(d)(2)). In reality, however, the process takes much longer. For example, the fiscal year 2015 average processing time at the Office of Medicare Hearings and Appeals (OMHA) is 661.1 days as of October 19, 2015.

Lawsuit. The AHA and certain hospitals filed suit, objecting to HHS’ flouting of the timeline of the appellate process, as well as its implementation of post-payment audits conducted by RACs and its temporary solution of the escalation process, which would allow hospitals to skip all but the first level of the administrative appeals process and present their cases to federal judges. The AHA opined that escalation is a disservice to hospitals, since it does not allow them to create a complete record. The court denied the case (see Court refuses to break the ‘logjam’ of Medicare appeals, December 22, 2014). It then appealed the matter, arguing that HHS must be held responsible for compliance with statutory deadlines ((see Hospitals to HHS: ‘Impossible’ is not an excuse for backlogJuly 16, 2015). The appellate court has yet to issue a decision, but the AHA feels strongly about its case. In Stetson’s words, “Mandamus must issue.”

Companies: American Hospital Association; Hogan Lovells

MainStory: TopStory ReimbursementNews ComplianceNews IPPSNews CMSNews AuditNews ClaimsAppealsNews PaymentNews PartANews PartBNews OPPSNews

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