Court Ruling May Affect OMHA

[thelonestranger]

See:US Court of Appeals160209-aljdelayappealdec....pdf (113.11 KB)

[christina]

read part of it. look forward to reading rest of it later. thanks for post

[Deleted]

"... the clarity of the statutory duty likely will require issuance of the writ if the political branches have failed to make reasonable progress within a reasonable period of time"

[Propmaster]

Feb 11, 2016 11:09:43 GMT -5 thelonestranger said:

See:View Attachment

Thank you so much for sharing. Not only is it an EXCELLENT primer for what OMHA does and the problems it is facing, it could have far-reaching impact on the hiring process.

[ksrunner]

My thanks also. Very interesting read. The volume of appeals and current backlog is staggering.

[bartleby]

One must remember that the writ of mandamus will do no good without increased funding to allow more hiring to move those cases. At one time, ODAR was hearing those cases. When the law changed and I saw the time limits, 90 days I was really bothered. However there was an out, the appellants could waive the 90 day rule. I thought they surely would as the same appellants will appear in front of the same Judges again, so they would waive the time limit so as to not irritate the Judge. Guess not. One must also remember that the appellants are often the same people that OMHA is attempting to collect overpayments from, so this may be a strategy attempt as much as anything.

[Deleted]

Feb 11, 2016 12:19:38 GMT -5 bartleby said:

One must remember that the writ of mandamus will do no good without increased funding to allow more hiring to move those cases. At one time, ODAR was hearing those cases. When the law changed and I saw the time limits, 90 days I was really bothered. However there was an out, the appellants could waive the 90 day rule. I thought they surely would as the same appellants will appear in front of the same Judges again, so they would waive the time limit so as to not irritate the Judge. Guess not. One must also remember that the appellants are often the same people that OMHA is attempting to collect overpayments from, so this may be a strategy attempt as much as anything.

This raises a question with me that demonstrates how little I actually know about this ALJ hiring process.

Is the money to hire more ALJs already appropriated? Is it just a delay in carrying out what has been budgeted? If a court issued a writ to OPM/ODAR saying, hire ALJs immediately, would that require additional funding being appropriated or would it just mean that previously budgeted monies would finally get spent?

sorry to be such a noob to the board.

[tom b]

Quite apart from the merits of the decision, the clarity of the majority opinion and the simple language with which it is written should serve as an example to every judge and decision writer on proper and dispositive judicial writing.

I like particularly that the court eschews citation to The Social Security Act.  I always made sure that my decisions at least put in parallel citations to the official U.S. Code (42 U.S.C. section 1395[add a minuscule letter here]).

Respectfully, Tom B

[Gaidin]

In case anyone is wondering about the AFIRM Act mentioned in the decision. Of particular interest to the folks on this board is the $125,000,000 in additional funds to OMHA and the creation of OMHA magistrates.

www.govtrack.us/congress/bills/114/s2368/text

[jessejames]

I WAS ABLE TO READ THE OPINION. LOOKS LIKE THERE MAY BE SOME INCENTIVE TO HIRE MORE JUDGES SOONER THAN LATER.

[Gaidin]

The Westlaw cite is 2016 WL 491658.

Its only a few days old so that is probably as good as it gets for a while.

[Propmaster]

Feb 11, 2016 12:19:38 GMT -5 bartleby said:

One must remember that the writ of mandamus will do no good without increased funding to allow more hiring to move those cases. At one time, ODAR was hearing those cases. When the law changed and I saw the time limits, 90 days I was really bothered. However there was an out, the appellants could waive the 90 day rule. I thought they surely would as the same appellants will appear in front of the same Judges again, so they would waive the time limit so as to not irritate the Judge. Guess not. One must also remember that the appellants are often the same people that OMHA is attempting to collect overpayments from, so this may be a strategy attempt as much as anything.

Hmm. As I read it, it said that a Writ of Mandamus would require the Secretary to stop pursuing fraud cases, since Congress did not mandate a number or time frame for those reviews. Depending on the secretary's level of passive-aggression, a mandamus order could result in restricting the program to very few fraud cases and even reversing all the pending appeals without review to get them out of the system.

Alternatively, if the secretary did not collect the provider's refund money until the appeal period had run (which I assume, like the rest of the program, is regulatory), it would take a lot of the bite out of the mandamus merit discussion, which seemed to focus heavily on the harm to the hospitals waiting for reimbursement.

I'm amused that the Court thought this decision would be a clarion call to Congress to do something. Does Congress listen to the DC Circuit more than I realize? As they pointed out, the Congress is aware of and doing nothing about this problem, essentially.

[gary]

I just want the OMHA PTB to know that if they put an office in the right town (one of your ALJs can tell you which towns would work) I stand ready to do my part to help reduce your backlog.

PS: I can start tomorrow!™

[luckylady2]

Feb 11, 2016 18:05:30 GMT -5 gary said:

I just want the OMHA PTB to know that if they put an office in the right town (one of your ALJs can tell you which towns would work) I stand ready to do my part to help reduce your backlog.

PS: I can start tomorrow!™

Me, too! (TM)

[momo]

Here's an idea to reduce the OMHA backlog. For hospitals and hospital systems that have hundreds or thousands of pending claims, do a global settlement. For example, "Hospital System A, you have had x number of claims before OMHA and have historically won y percent of your claims. Can we make a global settlement and give you that y percent of the recovery for all your current pending claims. It saves everyone time and expense, and you get your money now. But it has to be ALL of your current claims (no cherrypicking which claims to settle) and not for claims after Z date (to avoid adding new meritless claims just to get a free y% recovery)."

Here's a second idea: We can all start as ALJs tomorrow!

[fedHL]

There is a settlement being discussed but it is facing political challenge as you can imagine. Remember the majority of these denied are coming from audits which found insufficient documentation of services or practices bordering on fraud. There are some elected officials and CMS vanguards who don't want to pay them simply to decrease a backlog.

We shall see.

[Propmaster]

fedHL, the court case pointed out that 47% (or something like that) of the appeals are won. So settling for 47% of the total disputed amount would be the same win as slogging through the process, but without the slogging.

I think it's a great idea, and I'm glad to hear that's in play.

Or do you mean a settlement before the District Court addresses mandamus? That's unlikely to be as helpful as momo's suggestion.

[fedHL]

Carefully, I will say the powers that be at the four levels of appeal are thinking of innovative ways to settle all existing claims currently before the contractors, the QICs, OMHA and then the DAB. This began before the lawsuit was even filed I believe but definitely before this remand. Every level feels the strain of the additional mountains of work.

Of note, many of those 47% of overturned decisions and reversed or modified at the DAB.

On top of that, there is a proposal in the universe to add additional types of claims to the pipeline that is OMHA's jurisdiction. My opinion is that the solution is more ALJs as well as some creative fast track docket work (beneficiaries and to some extent escalated cases are fast tracked now).

[fedHL]

Point of clarification: Existing RAC related backlog claims. Not all claims in general.

[Propmaster]

Thanks!