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Tag: SSI

Good News from the Ninth Circuit Court of Appeals

Last week, providers won a major victory at the Ninth Circuit Court of Appeals relating to the government’s inclusion of non-covered Medicare Part A days (such as exhausted benefit days and Medicare Secondary Payer days) in the SSI Ratio of the Medicare DSH payment calculation. The Court held in favor of providers that the 2005 Rule promulgated by the Secretary of Health and Human Services be vacated on the grounds that the rule is “substantively invalid.” (Empire Health Foundation v. Azar, Case 18-35845).

Ninth Circuit Holds ‘Entitled’ Does Not Mean ‘Eligible’
The Empire Court found HHS’s implementation of the 2005 Rule, wherein HHS arbitrarily included non-covered Medicare Part A days in its calculation of the SSI Fraction, to directly conflict with the Ninth Circuit’s longstanding interpretation of the meaning of “entitled to [Medicare].” The Ninth Circuit in 1996 interpreted the meaning of the words “entitled” and “eligible” in another appeal. (Legacy Emmanuel Hospital and Health Center v. Shalala, 97 F. 3d 1261, 1265-66 (9th Cir. 1996)). According to the Legacy Emmanuel Court, “entitled” means the patient has an “absolute right . . . to payment,” whereas the word “eligible” means the patient “simply meets the Medicaid statutory criteria.” Because the Ninth Circuit’s interpretation of the word “entitled” is unambiguous, HHS’s decision to treat the words “entitled” and “eligible” as having the same meaning directly contravenes the Ninth Circuit’s interpretation of the statute and “cannot stand,” according to the Empire court.
 
What It Means To You
Toyon Associates, Inc. has been helping Providers in appealing the agency’s implementation of the 2005 Rule relating to non-covered Part A days. Toyon’s position has consistently been that non-covered Part A days should be excluded from the SSI Fraction and the portion of those days that are dual eligible be included in the numerator of the Medicaid fraction. 
 
While the Ninth Circuit decision is a great win for providers who have this issue under appeal, the decision is not yet final. HHS has 45 days from the date of the decision to request en banc review or appeal to the Supreme Court, and there is no reason to believe HHS would decline to fight this appeal further. However, in anticipation of this positive ruling, Toyon has engaged the same attorney who prevailed in the Empire Health Foundation case and is actively working to move all its pending Medicare Part A appeals into court so as to position providers in the best situation to benefit from this positive ruling.

What Now?
Providers will need to wait to see how HHS responds to the Ninth Circuit’s ruling but be prepared to move their appeals forward. Toyon will be contacting affected hospitals in the coming weeks as necessary, as more details become available on this issue.

Please contact Karen S. Kim at (888) 514-9312 or karen.kim@toyonassociates.com if you have any questions or concerns.

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Good News from the Supreme Court

Here’s what happened: A major victory was won today for Providers who have appealed the inclusion of Medicare Part C days in the SSI ratio/exclusion of dual-eligible Medicare Part C days in the Medicaid ratio for years ending 2004-2012.

The Supreme Court of the United States has affirmed Allina Health Services, et al. v. Price, 863 F.3d 937 (CADC 2017), wherein the United States Court of Appeals supported Providers and held that HHS violated the Medicare Act when it changed its reimbursement formula without providing notice and opportunity for comment

HHS arbitrarily began including Part C days in the Medicare fraction through its 2004 Final Rule, and Toyon has been helping Providers in appealing the agency’s actions. The Providers’ position has consistently been that only Medicare Part A days should be included in the SSI ratio and that dual-eligible Part C days instead belong in the numerator of the Medicaid ratio calculation. Providers argued CMS’ actions were tantamount to retroactive rulemaking, which the D.C. Circuit agreed was impermissible in Northeast Hospital Corp. v. Sebelius, 657 F.3d 1 (CADC 2011). Providers also disputed the fact that HHS violated statutory notice-and-comment obligations in establishing its practice of including Medicare Part C days in the SSI ratio, a position both the DC Circuit Court and U.S. Court of Appeals upheld through the prior Allina decisions. 

What it means to you
Today the Supreme Court settled the issue once and for all by agreeing with Providers and holding that HHS did indeed violate its rulemaking obligations in including Part C days in the SSI ratio. This decision should effectively invalidate the agency’s actions andProviders should expect to be offered settlement amounts from CMS for any negative reimbursement impacts caused by its inclusion of Part C days.

What Now?
No details are yet available on how or when the amounts will be calculated nordispensed to affected Providers, but Toyon Associates, Inc. will be contacting affected hospitals in the coming weeks as more details become available.

Please contact Karen Kim at (925) 685-9312 or karen.kim@toyonassociates.com if you have any questions or concerns. 

The following is the link to the ruling. 

https://www.supremecourt.gov/opinions/18pdf/17-1484_4f57.pdf

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CMS Releases 2014 SSI Updated File Today

From: CMS DSH Website – 7/15/16

The long awaited FFY2014 SSI file was posted by CMS earlier today.  This updated SSI will be used in the Inpatient Acute PPS FY2017 final rules for the development of the DSH Uncompensated Care Factor 3.  This SSI file will also be used for Inpatient Acute hospitals with fiscal years that begin from 10/1/13 – 9/30/14.  For calendar year providers this applies to FYE 12/31/14 and for June yearend providers this file will apply to FYE 6/30/15.

We have prepared a four year comparison (i.e. FFY 2011-2014) SSI file of the acute hospitals for your use.  Click here to download this comparison file.

CMS also released a transmittal today announcing the 2014 SSI release.  Here is a summary of this transmittal:

SUMMARY OF CHANGES:

These instructions notify Medicare Administrative Contractors (MACs) of the availability of updated data and instructions on how to access such data for determining the disproportionate share adjustment for IPPS hospitals and the low income patient (LIP) adjustment for IRFs as well as payments as applicable for LTCH discharges. The SSI/Medicare beneficiary data for hospitals are available electronically and contains the name of the hospital, Centers for Medicare & Medicaid Services (CMS) certification number, SSI days, total Medicare days, and the ratio of Medicare Part A patient days attributable to SSI recipients.

Inpatient Rehab SSI Release – FY2014

Concurrently with the Acute IP Hospital SSI release, CMS announced the Inpatient Rehab SSI release for FY2014 that is used for the Low Income Payment (LIP) calculation.  The link above is will take you to the Rehab SSI location.  However as of this writing (Friday 7/15 2:30PM PST) the 2014 SSI data has not yet been posted.

CMS Releases 2014 SSI Updated File Today

 

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