Court Awards Attorney’s Fees After Failure of CMS to Properly Evaluate Conditional Payment Claims


In Tarbert v. Azar, (2020 U.S. Dist. LEXIS 83813, D. Mont. May 12, 2020), the plaintiff was awarded a settlement for asbestos-related injuries sustained while living near a mining operation. Following the settlement, Medicare sought reimbursement of conditional payment claims made on behalf of Ms. Tarbert.


The plaintiff disputed several of the conditional payment claims and exhausted her administrative remedies through CMS. Following the same, the plaintiff took her appeal to an Administrative Law Judge (ALJ). The ALJ issued a fully favorable decision on the appeal. However, the plaintiff submitted an outdated billing form with her appeal and, because her appeal was unclear, several disputed charges were not removed from the demand.


Following the ALJ decision, the plaintiff continued to the Appeals Council. The Council upheld the ALJ’s decision, and the plaintiff appealed to the U.S. District Court for the District of Montana. The Court remanded the case, finding that the Council’s decision was not supported by substantial evidence. The plaintiff requested attorney’s fees for seeking review at the District Court level. Finding that the government’s litigation position was not substantially justified, the Court awarded the plaintiff with attorney’s fees under the Equal Access to Justice Act. The Equal Access to Justice Act allows courts to award reasonable attorney’s fees to a prevailing party when the government does not meet its burden of showing that its positions were substantially justified or that special circumstances would make an award unjust.


While it is encouraging for parties that courts may award attorney’s fees in federal court when CMS’s position is not substantially justified, the plaintiff in this case could have avoided unfavorable decisions from the ALJ and Appeals Council by more effectively presenting her appeal. Here, the ALJ and the Appeals Council failed to properly review the plaintiff’s appeal of Medicare conditional payment claims because the supporting evidence she provided was not clear. To avoid a protracted appeals process and to ensure that CMS or, if necessary, an ALJ or the Appeals Council properly addresses an appeal of conditional payment claims, it is vital to clearly and precisely address the disputed claims.


Let us help resolve Medicare conditional payment claims. We are happy to address any questions about the dispute process.

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