Running the Gauntlet: Wolcott v. Sebelius Reveals Loopholes in the Medicare Part B Appeals Process that the Fifth Circuit Cannot (Or Will Not) Close

Provides a brief background of Medicare and its appeals process in order to illustrate the unjustifiable, inefficient, and unfair loophole that exists in the current Medicare administrative structure. Part II describes the facts of De Wall Enterprises, Inc. v. Thompson and Wolcott v. Sebelius. Part III addresses why an Article III court such as the Fifth Circuit could have granted Wolcott mandamus relief and bound Medicare to ALJ rulings between the specific parties involved. Part IV explains the delicate issue of judicial deference to agency action and why, perhaps, the Fifth Circuit, like previous circuits, avoided granting mandamus. Part V advises courts to be confident in granting mandamus in appropriate administrative settings because mandamus is currently the only remedy. Part VI urges Congress to afford other remedies for service providers by drafting a statute that creates a cause of action for a medical service provider to recover attorneys' fees and treble damages if the medical service provider's routine standard of care is found to be medically necessary and reasonable and if Medicare refused to reimburse the provider. Finally, Part VII proposes one last simple solution that could be implemented rather quickly, would reduce the costs of Medicare appeals.