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HHS Secretary Alex Azar to Supreme Court: Time to rule on Medicare case that affects $4 billion

Lower court's decision about disproportionate share hospital payments undermines the ability HHS has to administer Medicare reimbursement, Azar says.

Susan Morse, Senior Editor

HHS Secretary Alex Azar Credit: Chris Kleponis-Pool, Getty ImagesHHS Secretary Alex Azar Credit: Chris Kleponis-Pool, Getty Images

Health and Human Services Secretary Alex Azar asked the U.S. Supreme Court to review an appeals court case won by numerous hospitals over disproportionate share hospital payments.

Azar said the decision affects between $3 and $4 billion in Medicare funding and therefore, the Supreme Court's review is warranted. 

At issue is whether the Centers for Medicare and Medicaid Services needed to go through a notice and comment rulemaking to get stakeholder feedback before deciding on its own to include Medicare Advantage beneficiaries in its calculations for DSH payments.

Medicare pays hospitals for providing inpatient care and gives an additional payment known as disproportionate share hospital adjustment to hospitals that serve a significantly disproportionate number of low-income patients.

The payment is based on two percentages. The first is a Medicare fraction, which is calculated using the number of patient days for patients who are entitled to benefits under Medicare Part A and for supplemental Social Security income benefits.

The second percent includes patient days attributable to patients who are not entitled to benefits under Medicare Part A.

Medicare Advantage, or Medicare Part C, established in 1997, allows individuals to receive benefits under Parts A and B through enrollment in a private MA plan. 

Prior to 2004, CMS did not count a hospital's Medicare Part C patient days when calculating the Medicare fraction used to determine DSH payments. Starting in 2004, CMS made a decision on its own interpretation of a rule and determined Part C patients were entitled to benefits under Medicare Part A within the meaning of Medicare-fraction provisions.

Hospitals challenged CMS' interpretation done without notice and comment rulemaking. A district court sided with the government, but in 2017 the U.S. Court of Appeals in the District of Columbia ruled with the hospitals. 

The appeals court said HHS needed notice and comment rulemaking before providing Medicare Administrative Contractors the payment calculation that is passed on to hospitals.

The decision undermines its ability to administer the annual Medicare reimbursement process in a workable manner, HHS said.

"The D.C. Circuit's contrary decision would significantly impair HHS's ability to administer annual Medicare reimbursements through the MACs that act on its behalf," the Supreme Court filing said. "It would also impose significant costs on the government. Just with respect to the Medicare-fraction issue in this case, the decision below affects between $3 and $4 billion in Medicare funding."

Solicitor General Noel Francisco filed the petition in April on behalf of Azar, against health systems Allina Health Services, doing business as United Hospital, Unity Hospital and Abbott Northwestern Hospital; Florida Health Sciences Center dba Tampa General Hospital; Montefiore Medical Center; Mount Sinai Medical Center of Florida dba Mount Sinai Medical Center; New York Hospital Medical Center of Queens; New York Methodist Hospital; and New York Presbyterian Hospital and New York Presbyterian Hospital Weill Cornell Medical Center.

Twitter: @SusanJMorse
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