Circuit court hears arguments in HHS challenge of Medicare appeals order

The U.S. Court of Appeals for the District of Columbia Circuit today heard oral argument in the government’s appeal of a December 2016 court order obtained by the AHA and three hospitals, which required the Department of Health and Human Services to eliminate within four years the Medicare claims appeals backlog pending at the administrative law judge level. Counsel for both sides faced some difficult questions from the three-judge panel. Chief Judge Merrick Garland focused questions for AHA counsel on the potential unfair burden the lower court’s order places on the agency when it cannot achieve the percentage reduction required during a particular year. AHA counsel Cate Stetson of Hogan Lovells pointed out that HHS has not demonstrated that the reductions are impossible, and said there continues to be a variety of legally permissible options available to the agency to ensure its efforts to eliminate the appeals backlog are successful. The government’s appeal follows the lower court’s January 2017 rejection of the agency’s petition for reconsideration of the order to reduce the backlog by particular percentages in each of the next four years.