AHA files amicus brief supporting reviewability of certain CMS determinations

The AHA along with the Federation of American Hospitals, America's Essential Hospitals and the Association of American Medical Colleges July 29 filed an amicus brief in the U.S. Court of Appeals for the District of Columbia in support of hospitals' continued right to seek immediate review of any Centers for Medicare & Medicaid Services determination that could impact Medicare payments for providers. These determinations include those made under CMS' disproportionate share hospital formula, which can have profound impacts on hospitals' Medicare payment amounts even with minimal adjustments, and for which a months- or yearslong process to correct mistakes could have substantial and even irreparable consequences.

Congress granted providers the ability to immediately challenge final determinations governing future payments when it enacted Medicare's current prospective payment system, but CMS has since sought to arbitrarily narrow the category of determinations considered final, effectively insulating its decision making from review. As the brief makes clear, this effort by the government is untenable for hospitals. "Hospitals seeking to preserve their rights in the face of the government's indeterminate reviewability test should not be forced to risk violating agency rules or be left relying on administrative grace," the brief states. "They should be able to take a statutory provision specifically designed to make immediate review broadly available at its word."

The AHA, Federation, AEH, and AAMC urged the D.C. Circuit to consider the vast potential consequences of the government's shift for American hospitals both in the DSH context and beyond it. "At minimum, its approach compounds the complexity of an already-byzantine administrative apparatus and needlessly increases uncertainty," the brief notes. "Congress did not intend any of this. It enacted a simple provision that broadly allows hospitals to seek immediate review of any final CMS determination that reduces the payment amounts they will receive - including the DSH adjustment. This Court should give effect to Congress's judgment and affirm."