It seemed that the Court, similar to the lower court, was not so much troubled by the switch in the policy that CMS was proposing to adopt, but rather by the fact that CMS did not give hospitals a new opportunity to comment on new policy proposal.
Sterling, VA (PRWEB) February 27, 2014
On February 7, 2014, the United States Court of Appeals for the District of Columbia Circuit heard oral argument in Allina Health Services, et al., v. Sebelius, Case No. 13-5011. The case challenges the Secretary of Health and Human Services (HHS) final rule, effective on October 1, 2004, that requires inpatient days related to Medicare “Part C” enrollees to be included in the Medicare fraction, and excluded from the Medicaid fraction, for purposes of calculating Medicare disproportionate share (DSH) payments.
In the oral argument, the Centers for Medicare & Medicaid Services (CMS) asked the D.C. Appellate court to reverse the D.C. District court ruling from November of 2012, whereby the judge vacated the 2004 final rule that allowed the inclusion of the Medicare Advantage days in the SSI fraction and by implication, excluded the dual-eligible Medicare Advantage days from the Medicaid fraction. The court determined in the November 2012 ruling, that the U.S. Department of Health and Human Services had tried to use the complexity of Medicare to hide bad rulemaking, skipped proper notice-and-comment procedures, and lowered hospitals' DSH payments without their input.
Robert Roth, of Hooper Lundy & Bookman, P.C., attended the oral argument, which he described as, “quite spirited, with most of the questions directed at the government.” Roth went on to state, “It seemed that the Court, similar to the lower court, was not so much troubled by the switch in the policy that CMS was proposing to adopt, but rather by the fact that CMS did not give hospitals a new opportunity to comment on new policy proposal. For example, one of the judges chastised CMS for saying the proposed change would have only a small financial impact (less than $50M), when the hospitals in a previous case, Northeast Hospital Corp. v. Sebelius, which involved the same issue for the period before October 1, 2004, asserted that case involved hundreds of millions of dollars of DSH reimbursement.” Roth acknowledged that “it is always hazardous to try to predict how any court will rule,” but added that “it appears that the Court shared the hospitals’ concern about the rulemaking” and “we expect a ruling by summer.”
Follow the below link to hear the audio recording of the argument:
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