North Carolina Law Review

University of North Carolina School of Law

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Healing Medicare: Enforcing Administrative Law Deadlines in Medicare Appeals

May 31, 2017

95 N.C. L. Rev. 1293 (2017) 


The United States health-care system revolves around a small number of powerful actors, including insurers, providers, and patients. To date, many attempts at health-care reform have merely shifted costs from one group to another. One such attempt occurred in 2010, when the Center for Medicare and Medicaid Services (“CMS”) in the Department of Health and Human Services (“HHS) implemented the Recovery Audit Contractor (“RAC”) program. While the program successfully reduced overpayments to hospitals paid by Medicare, it also led to an unprecedented rise in appeals of Medicare payment decisions by health-care providers. Because of this rise in appeals, there is a significant backlog at the Office of Medicare Hearings and Appeals (“OMHA”). As of 2015, it would take ten years for OMHA to adjudicate every case currently before it and the appeals backlog is only growing larger.


Frustrated with this delay, some providers have filed motions in the U.S. Court of Appeals for the Fourth Circuit and the U.S. Court of Appeals for the District of Columbia seeking to compel OMHA to hear their appeals. The two circuits reached divergent conclusions due to different views on the enforceability of agency deadlines when alternative remedies are present, such as the option to escalate the claim to the next level of appeal. The Fourth Circuit viewed the appeals as part of a “coherent regulatory scheme,” and thus not independently enforceable by mandamus. The D.C. Circuit concluded that escalation is not an “adequate alternative remedy[,]” so mandamus is available. To answer the question of whether the courts should enforce OMHA’s statutorily imposed ninety-day deadline to adjudicate each appeal, it is necessary to address Congress’s rationale for providing intermediate deadlines in the Medicare appeals system and to evaluate possible solutions to the current backlog.


The D.C. Circuit’s decision to recognize the jurisdictional grounds for mandamus is essential to solving the problem, despite potentially significant consequences. Congress is pulling CMS in two separate directions by requiring CMS to implement the RAC program, yet failing to allocate funds necessary for OMHA to meet statutory appeals deadlines. Unless Congress increases funding, OMHA will have to implement one or more of the following changes: (1) significantly changing the RAC program, (2)altering the procedural rights guaranteed through the appeals process, or (3) allowing the backlog to grow even larger. This Recent Development argues that the D.C. Circuit’s decision to address the Medicare appeals process as a whole, instead of confining its analysis to just one hospital’s rights, is necessary to effectuate the intent of the governing legislation and reduce the Medicare appeals backlog.



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