[caption id="attachment_1475" align="alignright" width="113"]Robert E. Wanerman Robert E. Wanerman[/caption]

Even after the Secretary of HHS admitted that the current backlog of Medicare Part B appeals would take ten years to adjudicate at current staffing and funding levels, that was not enough for a hospital to obtain any relief from a court. Cumberland County Hospital System, Inc. v. Burwell, No. 15-1393 (4th Cir., Mar. 7, 2016).  In that case, a North Carolina hospital had initially been paid for over 900 claims, but those claims were subsequently determined to be ineligible after a post-payment review by a Recovery Audit Contractor ("RAC"), which sought to recover over $12 million from the hospital.  Although the hospital complied with the deadlines for filing administrative appeals, the Medicare Office of Hearings and Appeals had not held hearings or made determinations within the 90-day deadline in the Medicare statute. In order to expedite the process, the hospital sought a writ of mandamus from a federal court to order the Secretary to conduct the hearings.  The district court denied the motion, and the U.S. Court of Appeals for the Fourth Circuit agreed with the Secretary that no relief was warranted.

The court noted the Secretary's admission that there are over 800,000 pending Medicare appeals, and that absent any legislative remedy it would take over ten years to hear and decide the current caseload.  Despite these appalling statistics and the court's own statement that, "HHS's procedural arteries are seriously clogged," the court agreed with the Secretary that because the Medicare statute gives claimants the option of escalating their claim to the next level of review if hearing deadlines are not met, the hospital was not entitled to the court order it sought.

The Cumberland County decision highlights a critical step for anyone seeking to appeal a Medicare coverage or reimbursement decision: making sure that the record is complete as early as possible in the appeal process.  Under the Medicare hearing regulations, it becomes more difficult to introduce additional evidence at each level of review, and new evidence will not be considered by a reviewing court. As a result, anyone appealing an unfavorable Medicare decision should either be prepared to be patient, or should make a complete record as early as possible in the process if an option is escalating an appeal to a higher level to get a timely hearing.  Although Congress is considering legislation that may help, the degree of that help or when that help may arrive is still too uncertain to predict.

Back to Health Law Advisor Blog

Search This Blog

Blog Editors

Authors

Related Services

Topics

Archives

Jump to Page

Subscribe

Sign up to receive an email notification when new Health Law Advisor posts are published:

Privacy Preference Center

When you visit any website, it may store or retrieve information on your browser, mostly in the form of cookies. This information might be about you, your preferences or your device and is mostly used to make the site work as you expect it to. The information does not usually directly identify you, but it can give you a more personalized web experience. Because we respect your right to privacy, you can choose not to allow some types of cookies. Click on the different category headings to find out more and change our default settings. However, blocking some types of cookies may impact your experience of the site and the services we are able to offer.

Strictly Necessary Cookies

These cookies are necessary for the website to function and cannot be switched off in our systems. They are usually only set in response to actions made by you which amount to a request for services, such as setting your privacy preferences, logging in or filling in forms. You can set your browser to block or alert you about these cookies, but some parts of the site will not then work. These cookies do not store any personally identifiable information.

Performance Cookies

These cookies allow us to count visits and traffic sources so we can measure and improve the performance of our site. They help us to know which pages are the most and least popular and see how visitors move around the site. All information these cookies collect is aggregated and therefore anonymous. If you do not allow these cookies we will not know when you have visited our site, and will not be able to monitor its performance.