Court drops backlog order

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The Department of Health and Human Services will have another shot at explaining why it believes a four-year timeline for clearing the current Medicare appeals backlog is “impossible,” thanks to an August court ruling.

HHS had been ordered to clear the backlog by the end of 2020, which the department called a “clear error” that could not be achieved without additional resources.

In its recent opinion, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the lower court's imposition of the four-year timeline suggested by the American Hospital Association, which sued HHS over the backlog, didn't give enough weight to HHS' arguments that the deadline would be impossible to abide by.

“[The] Court declined to seriously grapple with the Secretary's assertion that lawful compliance with such a mandamus order would be impossible,” wrote Judge Robert L. Wilkins in the opinion. “The Court commanded the Secretary to perform an act ... without evaluating whether performance was possible.

The court vacated the deadline order and remanded the case back to District court to determine whether HHS' impossibility argument holds water. The District court could reissue the order “without modification” if HHS cannot show the “impossibility,” Wilkins noted.