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Lawyers say there might be a way for CMS to keep paying ASP minus 22.5% for 340B drugs at some hospital outpatient departments, but they don't think the agency will use it.

Is There a Loophole That Might Let CMS Keep Paying Some Hospital Departments ASP Minus 22.5% for 340B Drugs?

There could be a loophole in Tuesday’s Medicare hospital outpatient payment final rule for 2023 that lets the government keep paying hospitals for 340B-acquired drugs at average sales price minus 22.5% at some hospital offsite locations, healthcare lawyers said yesterday. But it would take chutzpah for federal health officials to use it and they probably will not, they said.

While the Centers for Medicare & Medicaid Services (CMS) did not directly respond to our specific inquiry, it did tell 340B Report late this morning that it is finalizing a general payment rate of ASP plus 6% for drugs and biologicals acquired through the 340B program.

There could be a loophole in Tuesday’s Medicare hospital outpatient payment final rule for 2023 that lets the government keep paying hospitals for 340B-acquired drugs at average sales price minus 22.5% at some hospital offsite locations.

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