Court of Appeals Reverses D.D.C. Order Requiring HHS to Eliminate Medicare Appeals Backlog by December 31, 2020

Stewart W. Kameen,

410.862.1068, skameen@bakerdonelson.com

Leslie Demaree Goldsmith,

410.862.1133, lgoldsmith@bakerdonelson.com

Hopes were dashed for sooner relief from the backlog of Administrative Law Judge (ALJ) appeals. With the backlog of Medicare reimbursement appeals steadily growing, a reversal by the U.S. Court of Appeals for the District of Columbia complicated matters by undoing a four-year reduction plan that required the Secretary of Health and Human Services (HHS) to eliminate the backlog of appeals by December 31, 2020. Am. Hosp. Ass’n et. al. v. Price, No. 17-5018 (D.C.Cir. Aug. 11, 2017). The Court of Appeals vacated the order and remanded for further consideration as to whether the reduction plan was attainable through lawful means.

As explained in an earlier edition of Payment Matters on December 5, 2016, a U.S. District Court for the District of Columbia granted summary judgment in favor of the American Hospital Association (AHA) in its quest to reduce and eliminate the backlog of Medicare reimbursement appeals. In that decision, the court targeted the multi-year delays in the Medicare appeals process at the ALJ stage, the third of four stages of administrative appeals, during which some current appeals are now predicted to stall for more than a decade and newly-filed appeals for even longer. The entire appeals process is designed on a one-year timeline from start to finish and the district court noted that HHS is “bound by statutorily mandated deadlines, of which it is in flagrant violation as to hundreds of thousands of appeals.” As of June, more than 600,000 appeals are pending at the ALJ stage. AHA v. Price, slip op. at 21. Even so, the Court of Appeals disagreed with the lower court’s December 5, 2016 solution, which adopted one of AHA’s proposals that required HHS to reduce the backlog as follows:

Targeted Probe and Educate – CMS Changes Its Approach to Auditing

Christopher P. Dean, 410.862.1176, cdean@bakerdonelson.com

Medicare providers and suppliers will now be subject to Targeted Probe and Educate (TP&E) audits beginning this fall. These TP&E audits will focus on limited audits of individual providers and provider education. This new program expands on an existing CMS pilot auditing program, which applied previously to only three MAC jurisdictions.

TP&E will focus the MACs on targeting high-risk areas while encouraging Medicare providers and suppliers to understand and correct their billing behavior to prevent future incorrect claims. TP&E begins with MACs identifying providers and suppliers with either high claims error rates or with billing practices that differ materially from other similar providers and suppliers. The MACs will use data analysis to identify these two groups and it was implied that the MACs could rely on the Common Working File; historical billing, payment and utilization data; and other internal or external sources to conduct their data analysis.

Telehealth: Avoid the Risks and Reap the Benefits for Healthier, Happier Residents

Emily Wein presented this webinar highlighting some of the benefits and risks of telehealth within the long term care industry. Federal and state regulations present significant obstacles to growth in all areas of telehealth. In this presentation, Emily provides a brief regulatory status update, comments on recent trends and identifies potential areas of opportunity and concern in the future. View the webinar here.

Editors