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Author Recommends Medicare Use ‘Procedural Triage’ to Eliminate Backlog of Appeals and Restore Faith in the System

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

IndestIn a recent law journal article being considered for publication, Author Matthew J. B. Lawrence of the Harvard University Petrie-Flom Center, makes some bold recommendations for Medicare. His hypothesis seems to be that the extremely long delay that health care providers now face in getting a Medicare appeal hearing might be negatively affecting these providers’ view of the fundamental fairness of the system. Currently, the backlog in obtaining a Medicare Appeal Hearing before an administrative law judge is up to approximately 27 months. Mr. Lawrence argues “procedural triage” may be in order.

Following is an abstract of this article:

Prior scholarship has assumed that the inherent value of a “day in court” is the same for all claimants, and so that when procedural resources (like a jury trial or a hearing) are scarce, they should be rationed in the same way for all claimants. That is incorrect. This Article shows that the inherent value of a “day in court” can be far greater for some claimants, such as first-time filers, than for others, such as corporate entities, and that it can be both desirable and feasible to take this variation into account in doling out scarce procedural protections. In other words, it introduces and demonstrates the usefulness of procedural triage.

The Article demonstrates the real-world potential of procedural triage by showing how Medicare should use this new tool to address a looming administrative crisis that it is facing. In the methodological tradition of Jerry Mashaw’s seminal studies of the Social Security Administration, the Article uses its in-depth study of Medicare to develop a theoretical framework that can be used to think through where and how other adjudicatory processes should engage in procedural triage. The Article concludes by applying this framework to survey other potential applications for procedural triage, from the Department of Veterans’ Affairs to the Federal Rules of Civil Procedure.

Blog Editor’s Comments:

The main point of the justice system is that everyone deserves a “day in court.” In this document, Procedural Triage, Matthew J. B. Lawrence argues that the value of a day is different for all claimants; it can be greater for some, so we shouldn’t treat everyone alike. Lawrence suggests some individuals deserve to have a hearing more than others, but sometimes the system compromises that rule.

One thing this article does is show how useful procedural triage can be. “Procedural triage” being a system that makes all medical institutions who are enrolled in Medicare use statistical tools for peoples to retain their right to a full “day in court.” He suggests Medicare uses the tool to face its current administrative crisis. In the end, it would benefit due process in the entire system.

Comments?

What do you think about procedural triage? Do you agree that Medicare should use it? Please leave any thoughtful comments below.

Contact a Health Care Attorney Experienced with Medicare and Medicaid Cases.

Attorneys with The Health Law Firm represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other healthcare providers and institutions in Medicare and Medicaid investigations, audits, recovery actions and termination from the Medicare or Medicaid Program. We also handle Medicare audits, ZPIC audits and RAC audits throughout Florida and across the U.S.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Sources:

Lawrence, Matthew J. B. “Procedural Triage.” Social Science Research Network. (June 17, 2015). From: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2619864

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: procedural triage, defense attorney, defense lawyer, medical lawyer, lawsuit, medical professionals, healthcare professionals, health care attorney, health care lawyer, The Health Law Firm, Medicare, court, litigation, day in court, procedural protections, Social Security Administration, adjudicatory, procedural justice, behavioral economics, adjudication, administrative process, civil procedure, due process, justice system

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2015 The Health Law firm. All rights reserved.

Administrative Final Orders Must State Findings of Fact Based on the Evidence Presented

Attorney George F. Indest III HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by the Florida Bar in Health Law

Following is a summary of a recent appellate case on an issue relevant to health law:

Borges v. Dep’t of Health, 143 So. 3d 1185 (Fla. 3d DCA 2014).
Gustavo Borges (Borges) appealed a final order of the Florida Board of Dentistry that revoked his license to practice dentistry based on a conviction of the knowing receipt of child pornography under a federal statute.

At hearing, eight lay witnesses and four expert witnesses testified. In the recommended order’s discussion of the evidence presented, which was the basis for the Board’s final order, the administrative law judge (ALJ) discussed the testimony of only one witness-Borges-after concluding that a statement by Borges constituted a concession that established that his conviction was related to his ability to practice dentistry. No other testimony was discussed in the order, or even acknowledged.

On appeal, the appellate court concluded that the ALJ’s recommended order adopted by the Board did not comply with one of the requirements of section 120.57, Florida Statutes-that an ALJ’s order must contain “express findings of fact.” The court was quick to point out that, while the findings of fact did not have to address the testimony of every witness (i.e., all twelve here), the order must at least address the factual controversies at issue to the extent they are relevant to the disposition, or address why the testimony is irrelevant. Having failed to do so in this case, the appellate court reversed and remanded.

The case summary above was originally published in the Administrative Law Section Newsletter, Vol. 34, No. 2 (Dec. 2014), a publication of The Administrative Law Section of The Florida Bar.

Editor’s Comments on Case Summary.

This case demonstrates an important concept in administrative law. This is, an administrative law judge is required to discuss the evidence presented at the hearing and make specific findings of fact based on that evidence. Failing to do this in the recommended order (RO) can lead to reversal by an appellate court.


Comments?

Do you think the appellate court should have reversed? Do you think it was important to discuss all testimonies in this case? Please leave any thoughtful comments below.


Contact Health Law Attorneys Experienced in Handling Licensure Matters.

If you have been arrested, it is strongly recommended that you retain an experienced healthcare attorney who can advise you as to the effects a potential outcome could have on your license.

The attorneys of The Health Law Firm routinely represent physicians, pharmacists, nurses, and other healthcare practitioners in licensure matters. We frequently consult with criminal defense attorneys regarding defense strategies tailored to minimizing criminal sanctions while preserving the practitioner’s license.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.


About the Author
: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone (407) 331-6620.

KeyWords: Criminal law, license, defense attorney, health law, health care attorney, health care lawyer, health investigation, medical license, conviction, desntist, dentist criminal charges, Department of Health, DOH, professional license, federal statutes, license disciplined, license revoked, health attorney, finding of guilt, adjudication withheld, diversion program, DOH conviction, adjudication, discipline, criminal trial, defense lawyer, ALJ, administrative law judge, administrative law, appellate court, administrative orders, Florida Board of Dentistry, Board of Dentistry, dentistry, statutes, testimony

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2015 The Health Law Firm. All rights reserved.