Medicare attorneys are wondering what the HHS will do next after the U.S. Court of Appeals for the District of Columbia Circuit invalidated the prevailing Medicare rule on how disproportionate share hospital (DSH) payments are calculated.
The issue in dispute involves how the DSH payment calculation accounts for managed care beneficiaries, and is worth potentially hundreds of millions of dollars to hospitals nationwide.
The appeals court rebuffed the HHS’s request for a rehearing, and the Department of Health and Human Services has until Feb. 27—or longer if an extension is granted—to petition the Supreme Court for review.
Supreme Court review is one route that the HHS can take, with no guarantee that the high court will agree to hear the case, or of victory if it does. Kenneth Marcus, an attorney with Honigman Miller Schwartz and Cohn LLP in Detroit, told me that the Supreme Court likely would decide whether to grant any petition in Allina during its current term, and if granted, would probably consider the case during the next one.
A Supreme Court decision in Allina could decide whether the Medicare Act allows for interpretive rulemaking, which doesn’t require a public notice and comment period.
However, if the HHS decides against Supreme Court review, the agency will have to decide whether to continue to litigate the many similar cases brought by hospitals that are working their way through the administrative appeals process, or acquiesce to the D.C. Circuit’s ruling.
Acquiescence would mean paying significant Medicare reimbursements to hospitals with pending appeals, Marcus said, a route the HHS took in another DSH dispute, resulting in settlement with hundreds of hospitals in 2016.
“CMS may be reluctant to take that approach,” Marcus said, given the financial cost of complete acquiescence, though he added that administering relief to hospitals nationwide will “consume a lengthy period of time” if the D.C. Circuit ruling stands.
Medicare attorneys will be watching closely as Feb. 27 draws near to see which approach the HHS, and perhaps a newly appointed secretary Alex Azar, will take.
Stay on top of new developments in health law and regulation, and learn more, by signing up for a free trial to Bloomberg Law.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)