HHS will not be able to clear the backlog of Medicare appeals by its December 30, 2020, deadline, the agency said in a report to the U.S. District Court for the District of Columbia. HHS informed the court that due to a higher number of pending appeals than anticipated, without more money or resources, the agency will not be able to meet the deadline without violating its statutory requirement to decide appeals on the merits. Richard P. Kusserow, former HHS Inspector General (IG) and current CEO of Strategic Management, LLC, noted that the HHS position is not new. He said, “They have been making that argument from the beginning of the case.”
In February 2016, the D.C. Court of Appeals revived a 2014 case brought by the American Hospital Association (AHA) and three hospitals asking the court to issue a writ of mandamus to compel HHS to process their long-pending Medicare claim-reimbursement appeals in accordance with statutory timelines. On remand, the district court determined that because backlog numbers were unacceptably high, there were equitable grounds for mandamus. Accordingly, the court imposed a timetable, imposing increasing backlog reduction expectations, with elimination of the backlog of cases pending at the ALJ level by December 31, 2020 (see Court sets a timeline for Medicare claims backlog, December 6, 2016).
The order granting a writ of mandamus instructed HHS to file status reports with the court every 90 days. The most recent report indicates that as of March 5, 2017, there are 667,326 pending appeals at the Office of Medicare Hearings and Appeals (OMHA). HHS projections put the number of expected pending appeals at 1,009,768 by the end of FY 2021, higher numbers than those found in previous HHS estimates. Because the backlog is not a static obstacle, despite some resolution through settlement or formal adjudication, the agency has struggled to keep appeals numbers from growing. Kusserow said, “The best that they have been able to accomplish to date has been slowing the backlog development.” According to HHS, the revised projections are the result of setbacks from lower than expected provider interest in the agency’s settlement initiatives and stalled settlement discussions.