Medicare appeals might be getting a little more complicated for skilled care providers, thanks to a recent ruling from the Supreme Court, legal analysts predict.
In late June, the nation’s highest court decreed that administrative law judges for the Securities and Exchange Commission were not properly picked under the Constitution’s appointments clause, and should have been appointed by the president. Legal observers told Bloomberg Law that the high court’s decision may be applied to such judges at other federal agencies such as Health and Human Services.
President Trump followed the June 21 ruling with an executive order last week that gave agencies the greenlight to hire administrative law judges using their own qualifications.
All of this translates into ALJs facing new political worries within the context of their decisions, sources told Bloomberg. With more law judges granted their positions through political appointment rather than the rigorous previous process of seven years of trial experience, recommendations from lawyers and judges and passing both written and oral exams.
“It begs the question, if you don’t feel as secure in your position anymore and you’re able to be removed easily, do you have your independence if the CMS or some other agency has some agenda they’d like to push?,” Nick Alarif, an attorney at McDermott Will & Emery in Washington, told Bloomberg. “Does your concern about your livelihood change your position or your legal analysis?”
The ruling could have big ramifications for the HHS appeals system, which is facing a huge backlog of appeals and a lack of judges. But at the moment skilled care providers must take a wait-and-see approach to see how new judges are appointed and whether the ruling will apply to HHS.