Most providers whose claims have been determined to be improper by the Recovery Audit Contractors (RACs) under the Medicare Recovery Audit Program have discovered that the appeals backlog “is incontrovertibly grotesque.” Two Courts of Appeals have recently acknowledged that the Office of Medicare Hearings and Appeals (OMHA) has a 10-year backlog of more than 800,000 appeals, but they have reached differing opinions on whether providers have a right to force the U.S. Department of Health and Human Services (HHS) to expedite their appeals if an administrative law judge fails to conduct a hearing and render a decision within 90 days, as provided under 42 U.S.C. § 1395ff(d)(1)(A).

The D.C. Circuit Court of Appeals in American Hospital Association, et al. v. Burwell, directed the district court to review complaints of systemic Medicare appeal delays in a case brought by the American Hospital Association and several hospitals individually and indicated that the district court could issue a writ of mandamus requiring HHS to assure that appeals are resolved within the applicable statutory time frames, if the court finds “compelling equitable grounds” favoring the hospitals. However, the D.C. Circuit also stated that if the “district court determines on remand that Congress and the Secretary [of HHS] are making significant progress toward a solution, it might conclude that issuing the writ is premature. If so, it could consider such action as ordering the agency to submit status reports updating the court on the level of appropriations, the progress of the AFIRM Act [S. 2368, the Audit & Appeal Fairness, Integrity, and Reforms in Medicare Act (AFIRM) of 2015], and any other relevant information.”