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

In 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.

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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.

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