Medicare appeals order sent back to trial court

The Secretary of the Department of Health and Human Services will bear a “heavy burden to demonstrate the existence of an impossibility” notes today’s decision by U.S. Court of Appeals for the District of Columbia Circuit to invalidate the December 2016 court order obtained by the AHA and three hospitals requiring the agency to eliminate within four years the Medicare claims appeals backlog pending at the administrative law judge level. In a 2-1 decision instructing the lower court to determine whether lawful compliance with the timetable is impossible, the appeals court explained that the burden “serves to prevent an agency from shirking its duties by reason of mere difficulty or inconvenience.” Claims of impossibility “must [be] scrutinize[d] ... carefully since officials may seize on a remedy made available for extreme illness and promote it into the daily bread of convenience,” the appeals court states. “Therefore, on remand, if the Court finds that the Secretary failed to carry his burden of demonstrating impossibility, it could potentially reissue the mandamus order without modification.” Dissenting judge Henderson argued that HHS already has failed to meet its burden because “lawful compliance with the mandamus order here, even if difficult, is not demonstrably impossible.” Remanding the case according to the dissent would “waste time, punishing blameless Medicare providers who await billions of dollars of delayed payments essential to their operations.”