Hospital Sues HHS Over Allegedly Erroneously Dismissed Complaint

Plaintiff Ascension Borgess Hospital (Ascension) filed suit against defendant Xavier Becerra (Secretary of the U.S. Department of Health and Human Services) on Tuesday. The complaint for judicial review of a final adverse agency decision on Medicare reimbursement was filed in the District of Columbia. The plaintiff is seeking for the court to reinstate their suspended complaint against the CMS review board for miscomputed and erroneously dismissed Medicare claims.

When the Centers for Medicare and Medicaid Services (or CMS) is determining the reimbursement levels of inpatient provider services, they must make provider-specific disproportionate share adjustments (DSH adjustments). DSH adjustments require the Department of Health and Human Services to reimburse providers that “serve a significant disproportionate number of low-income patients” at a higher level. CMS determines this disproportionate patient percentage through Medicare and Medicaid fractions.

The complaint details seven issues that are being contested by the plaintiff, all pertaining to DSH percentages and payments. Within these issues, the plaintiff specifically argues Issue A, that the individual (referred to as the MAC) who computed DSH reimbursements for them did so incorrectly since they failed to include the correct number of patients entitled to benefits when computing the Medicare and Medicaid fractions. Ascension also asserted Issue B, that the MAC’s determination was in violation of the Medicare statute.

When this was initially submitted to the CMS review board, they ruled that the above assertions were a duplication and that only six issues existed. The Board also noted that another issue had been brought by a Common Issue Related Part Group (CIRP) for the larger Ascension Health, making the plaintiff’s raising of the same issue null since the same issues cannot be brought up by two separate entities. Ultimately, the Board mandated that within 60 days, the entire set of issues must be transferred to the CIRP group for Ascension or the plaintiff must attest that there is no relation. The Board later dismissed the complaint in its entirety due to the plaintiff’s failure to respond in a timely manner.

The plaintiff argues that this mandate by the Board is in violation of their own policies, including Alert 19 and CMS Ruling 1739-R. Alert 19 was issued to amend Board processes throughout COVID-19 and asserts that they recognize that “the immediate focus and priorities of Providers should be on caring for their patients.” The plaintiff claims that the Board’s dismissal of its appeal was both arbitrary and capricious since they had previously attested to recognizing and understanding delays that occurred as a result of the pandemic.

The complaint cites one count of remand, and the plaintiff is seeking that the court reinstate its complaint, recognize the arbitrary and capricious circumstances, permit the plaintiff to transfer its appeal to the applicable CIRP groups regarding some of the issues, and more.

The plaintiff is represented by Alan J. Sedley, APLC.