MEMORANDUM OPINION
JAMES
E. BOASBERG UNITED STATES DISTRICT JUDGE
This
case is now before the Court for a third time, following a
second remand from the D.C. Circuit. Plaintiffs here are the
American Hospital Association and three other regional
hospitals and health-care systems. Fed up by the delays in
the administrative-appeals process for Medicare-reimbursement
claims, they filed this suit in May 2014. Plaintiffs sought
mandamus to compel the Secretary of the Department of Health
and Human Services to comply with the statutory deadlines the
Medicare Act imposes on the appeals process. See ECF
No. 1 (Complaint). The Circuit initially instructed this
Court to weigh the equities to determine whether mandamus
should issue. After it did so and concluded that the writ was
appropriate, the Circuit reversed and remanded the matter for
this Court to make a threshold determination of whether it
was possible for the Government to comply with the
mandamus order. See Am. Hosp. Ass'n v. Price
(AHA V), 867 F.3d 160, 161 n.1 (D.C. Cir. 2017). As
this time around the Government agrees that recent funding
has made compliance possible within four years, the Court
will impose such a deadline.
I.
Background
Over
four years ago, Plaintiffs filed this action to compel the
Secretary to eliminate the long delays in the
administrative-appeals process for Medicare-reimbursement
claims. Details on this process, the causes of the delay, and
the resulting backlog have been laid out in the Court's
prior Opinions. See Am. Hosp. Ass'n v. Burwell
(AHA III), 209 F.Supp.3d 221, 222- 24 (D.D.C. 2016);
Am. Hosp. Ass'n v. Burwell (AHA I), 76
F.Supp.3d 43, 46-48 (D.D.C. 2014). Suffice it to say that the
Government has not been complying with certain statutory
timelines governing Medicare-reimbursement appeals. The
question has always been what, if anything, the Court can and
should do about it.
Initially,
the Court declined to intervene and dismissed the case.
See AHA I, 76 F.Supp.3d at 56. The D.C. Circuit
reversed and remanded, holding that mandamus jurisdiction
existed and instructing this Court to “determine
whether ‘compelling equitable grounds' . . . exist
to issue a writ of mandamus.” Am. Hosp. Ass'n
v. Burwell (AHA II), 812 F.3d 183, 192 (D.C.
Cir. 2016). It noted that mandamus would “likely”
be “require[d]” unless HHS made “meaningful
progress” towards reducing its substantial backlog.
Id. at 193.
On
remand, following these instructions, this Court recognized
that “equitable grounds [existed] for mandamus”
but observed that it “[did] not possess a magic wand
that, when waved, [would] eliminate the backlog.”
AHA III, 209 F.Supp.3d at 230. It thus asked the
parties to address in briefing the form any relief should
take. See Minute Order of Oct. 3, 2016. For example,
should the Court set particular deadlines for backlog
reductions or were there specific program requirements it
should impose? Concluding that “it should intrude as
little as possible on the Secretary's specific
decisionmaking processes and operations, ” the Court
ruled that setting a “timetable with deadlines for set
backlog-reduction targets [was] [a] preferable
approach” to giving HHS specific instructions as to how
to clear the backlog. See Am. Hosp. Ass'n v.
Burwell (AHA IV), 2016 WL 7076983, at *3
(D.D.C. 2016). It thus entered a deadline-based mandamus
order. Id. Specifically, it required the following
cuts: “30% reduction from the [then-existing] backlog
of cases pending at the ALJ level by December 31, 2017; 60%
by December 31, 2018; 90% by December 31, 2019; and 100% by
December 31, 2020.” Id.
The
D.C. Circuit again reversed, holding that this Court had not
specifically made a finding that it was possible for
the Secretary to comply with the order. See AHA V,
867 F.3d at 162. Although graciously acknowledging that this
Court had “thoughtfully and scrupulously weighed the
equities, ” id., the Court of Appeals invoked
Immanuel Kant's dictum that “ought implies
can, ” id. at 161 n.1, and instructed
that “[o]n remand, the Court should determine in the
first instance whether, in fact, lawful compliance with the
timetable is impossible.” Id. at 168. The
Circuit elaborated that “if [this] Court finds that the
Secretary failed to carry his burden of demonstrating
impossibility, it could potentially reissue the mandamus
order without modification.” Id. at 168-69. It
therefore “remand[ed] to [this] Court to evaluate the
merits of the Secretary's claim that lawful compliance
would be impossible.” Id. at 170.
While
the Circuit may rely on Kant, this Court believes that a set
of less cerebral philosophers may provide guidance - the
Brothers Grimm. For, like their Goldilocks, this Court cannot
always determine whether the soup it should brew is too hot
or too cold. In a third effort to get the recipe just right,
it asked the parties on remand to again brief the issue. The
Secretary initially continued to argue that “mandamus
should not issue” because HHS was already implementing
“extraordinary measures” to address the backlog,
rendering any further lawful measures impossible.
See ECF No. 66-1 (Def. MSJ) at 2, 5. Notwithstanding
this Court's reluctance to interfere with the
agency's decisionmaking, the Secretary also
“request[ed] that” - should the Court grant
relief - it “direct specific measures, rather than
impose timetables.” Id. at 5. Plaintiffs
focused their briefing on various measures they contend the
Secretary could take to minimize delay and reduce
the backlog. See ECF. No. 72-1 (Pl. MSJ & Opp.)
at 6, 9, 12.
This
briefing was followed by a hearing, which the Court ordered
“to address specific proposed mandamus remedies to
reduce the backlog, aside from fixed deadlines.” Minute
Order of Feb. 27, 2018. The Court then stayed the case for 90
days to see how HHS's new measures fared. See
Minute Order of March 22, 2018. Further briefing on
non-deadline remedies followed. See ECF Nos. 82
(Plaintiffs' Response on Non-Deadline Remedies), 86
(Defendant's Response to Plaintiff's Proposed
Non-Deadline Remedies), 87 (Plaintiffs' Reply). To
summarize, the proposed specific remedies focused on three
areas: reform of Recovery Audit Contractors (RACs); changes
to the agency's settlement practices; and ameliorative
measures to address the backlog's financial impact on
providers. See Pl. Response at 2, 6, 8. The
Government contends that it has already significantly
reformed RAC review and its settlement practices and that the
further reforms Plaintiffs propose would be unlawful,
impossible, or counterproductive. See Def. Resp. at
6-9, 11, 13. Sounding in a similar key, the agency also
maintains that the ameliorative steps Plaintiffs propose are
a combination of unlawful and unwise. Id. at 18-19,
22-23, 24.
As the
foregoing discussion makes clear, the Court faced an
unenviable task - and one that required a set of competencies
that do not squarely fall within the judicial realm. Then,
when least expected, a deus ex machina arrived:
HHS's “repeated requests” for additional
funds to address the appeals backlog were finally answered.
Id. at 3. On March 23, 2018, Congress appropriated
for that purpose $182.3 million, which the agency projects
will “more than doubl[e] its FY 2017 disposition
capacity.” Id. In fact, HHS now
“projects that, at current funding levels, OMHA's
adjudication capacity will increase over FY 2017 levels by
23% in FY 2018, 42% in FY 2019, 108% in FY 2020, and
approximately 122% in FY 2021 and 2022, ” meaning that
“the Secretary will be able to eliminate the
backlog entirely in FY 2022.” Id. at 1, 4.
Given this development, and the Court's continued
reluctance to impinge unnecessarily on the Secretary's
discretion, a deadline-based order seemed a renewed
possibility. Plaintiffs signaled their continued willingness
to go that route as well. See Pl. Reply at 4. The
Court thus held another hearing “to address potential
deadline-based remedies” on October 23, 2018.
See Minute Order of Oct. 11, 2018. This resolution
follows.
II.
Analysis
The
Circuit gave this Court a narrow task on remand: “to
evaluate the merits of the Secretary's claim that lawful
compliance would be impossible.” AHA V, 867
F.3d at 170. The Government has made this task simple via its
projection that the additional funding will enable the agency
to steadily reduce the backlog year by year until it is
eliminated in FY 2022. See ECF No. 86-2 (Medicare
Appeals Workload Projections) at 1. The Court therefore can
easily conclude that it would be possible for the
Secretary to comply with a mandamus order requiring that the
backlog be reduced and then eliminated on the precise
timeline that Defendant itself has projected. In other words,
the Government cannot claim it is impossible to follow its
own projections. The Court, accordingly, will order that the
Government reduce the backlog annually by the percentage
amount memorialized there. Those amounts - rounded to the
nearest percentage point in the agency's favor and
compared to the currently projected FY 2018 backlog of 426,
594 appeals as a baseline - come to a 19% reduction by the
end of FY 2019; a 49% reduction by the end of FY 2020; a 75%
reduction by the end of FY 2021; and elimination of the
backlog by the end of FY 2022. Id.
The
Government contends that, although these reduction targets do
reflect its own projections, its compliance with a mandamus
order reflecting them may nevertheless become impossible if
Congress does not continue to appropriate the same level of
funding. See Hearing Transcript at 5:12-14. The
Court appreciates this caveat. Should a change in
circumstances - not limited to an appropriations shortfall -
render lawful compliance with the order impossible,
therefore, Defendant can return and request modification at
that time. Cf. Rufo v. Inmates of Suffolk County
Jail, 502 U.S. 367, 384 (1992).
Before
its task is done, the Court must address two additional
issues - one raised by Defendant and one by Plaintiffs.
First, the Government maintains that the Court should not
limit its analysis to a possibility finding but should first
revisit the equities to determine whether mandamus is still
even appropriate. Given the changed circumstances -
viz., the additional funding and backlog-reduction
efforts the agency is already undertaking - the Secretary
argues that the equities now counsel against issuing the
writ. See Tr. at 7:10-25-8:1-5. The Court cannot
agree. The Circuit repeatedly provided a narrow instruction
on remand for this Court to make a finding regarding the
possibility of compliance. See AHA V, 867 F.3d at
...