While 340B hospitals eagerly await to see the Biden administration’s plans for Medicare Part B reimbursement, the U.S. Department of Health and Human Services (HHS) last night asked the U.S. Supreme Court to reject an effort by hospital groups to challenge the Trump Administration’s steep cuts.
Although the government in yesterday’s brief says the law is on its side, hospitals are crossing their fingers that relief could be on the way. As 340B Report broke yesterday, the U.S. Centers for Medicare & Medicaid Services (CMS) this week sent its proposed OPPS rule to the White House for review. The hospitals hope they can persuade the administration to reverse the cuts on in the rule. In its brief, the government pointed out that the appeals court ruling it defends “does not preclude petitioners from advancing their policy arguments in future annual rulemakings; the court of appeals concluded that the rate adjustments were permitted, not compelled, by the statute.”
HHS lawyers submitted the agency’s brief to the Supreme Court, in response to a request by the American Hospital Association (AHA) and other hospital organizations for the high court to hear the case.
The HHS brief asked the justices to keep in place a 2-1 decision by the U.S. District of Columbia (DC) Court of Appeals handed down last July ruling the cuts – first made in 2018 – were legal. The appellate court had reversed an earlier decision by a federal district court judge in D.C. striking down the cuts. HHS argued in yesterday’s brief that under the regulations of the hospital outpatient prospective payment system, the plaintiffs do not have a right to a judicial review of rate adjustments.
Legal experts are skeptical the Supreme Court will hear the case. They noted that the institution rarely takes up cases without conflicting decisions from federal circuits, or petitions brought by non-governmental entities. And even if that were the case in both instances, it grants requests for hearings only about 3% of the time, according to attorneys that 340B Report conferred with.
The suit was brought by the AHA, America’s Essential Hospitals, the Association of American Medical Colleges and three regional hospital systems, including Henry Ford Health System in Detroit. AHA spokesperson Colin Milligan said that his association has 10 days to formally respond to the HHS’ filing with the high court.
