Case analysis by Jeff Baird

‘That ruling affects us equally as much as it does hospitals and labs and physicians—we are all in this together’
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Friday, September 8, 2017

YARMOUTH, Maine – The American Hospital Association’s lawsuit against the Department of Health and Human Services over a massive appeals backlog has been ping-ponging between the U.S. District Court for the District of Columbia and the D.C. Circuit Court since it was first filed in 2014.

The latest ruling, issued Aug. 11, directed a federal judge to take a closer look at whether it’s actually feasible for HHS to clear the backlog by 2021, as previously ordered.

“I think the D.C. Circuit Court is saying, while we here are not opposed to a court ruling that addresses this appeals backlog, we do think what you did come up with was unworkable, where HHS just physically can’t do it,” says attorney Jeff Baird, chairman of the Health Care Group at Brown & Fortunato.“It’s a setback for AHA, but not a severe setback.”

Baird spoke with HME News recently to offers his thoughts on the case.

HME News: Is it typical for a case like this to drag on?

Jeff Baird: No, this is abnormal. In a sense, it is more academic, more of a policy lawsuit. They are going back and forth, basically going through the discussions and decision-making that you would normally think that HHS would go through or Capitol Hill. But Capitol Hill is not addressing this and, up to this point, HHS is not addressing this, so it’s a complete mess, so now the courts are saying, we have to address it.

HME: Whatever the final verdict, would you consider it a short-term or a long-term fix?

Baird: Both. Longer-term in the sense that I believe the court ruling will be to clean it up, get rid of the backlog and stay current. But having said that, it’s easy to say but reality may set it where there’s not enough ALJs to go around. There needs to be more of a fundamental fix. There needs to be real regulatory fixes that will keep this from snowballing again.

HME: What are the implications of this lawsuit for the HME industry?

Baird: If, as expected, the trial judge says, OK, here’s how and when I want these claims cleaned up, it’s likely HHS is going to appeal. HHS is not going to want any type of hammer hanging over it. That ruling affects us equally as much as it does hospitals and labs and physicians—we are all in this together.