FFY 2024 IPPS Proposed Rule
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Category: Mcare DSH
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Supreme Court Sides with HHS in Dual Eligible Part A Benefits Case
The Supreme Court on Friday issued the decision in Becerra v. Empire Health Foundation (see pdf file at link). Unfortunately, in a 5-4 decision, the Court overruled the Ninth Circuit’s decision and decided instead for the government, holding that the language “entitled to benefits under Part A” does not exclusively refer to a patient who has a right to payment. This means that the Supreme Court has sided with HHS’s decision to include 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.
In a prior decision, the Ninth Circuit found for providers in May 2020, holding that HHS was treating the words “entitled” and “eligible” synonymously, in contradiction of statute. In a surprising and somewhat puzzling turn, the Supreme Court has disagreed with the Ninth Circuit’s analysis, settling the issue in favor of HHS.
Toyon has been representing many of your interests in appealing the agency’s implementation of the 2005 Rule relating to non-covered Part A days, as providers had consistently held that non-covered Part A days should be excluded from the SSI Fraction and included only in the numerator of the Medicaid Fraction. We are working with our attorneys to determine any potential next steps or strategies that may be available to our clients, in light of this disappointing court decision. We will contact you in the coming weeks as necessary if there is any further opportunity to pursue this issue.
In the meantime, please contact Karen S. Kim at (925) 685-9312 or at karen.kim@toyonassociates.com if you have any questions.
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FFY 2023 IPPS PROPOSED RULE COMMENTS DUE JUNE 17, 5 PM EDT
This Friday June 17th at 5 PM, comments are due on CMS’s proposed FFY 2023 IPPS rate setting. In commenting –
- Refer to file code CMS–1771–P.
- Submit electronically through this regulation link then select the COMMENT button at left, below the title; or
- Submitted by mail to: Centers for Medicare &Medicaid Services, Department of Health and Human Services, Attention: CMS–1771–P, P.O. Box 8013, Baltimore, MD 21244–1850.
Please feel free to see Toyon’s comments here on our website. Providers may also download a word version of these comments with designated [highlighted] areas to populate for your hospital or health system.
Toyon’s comments are focused on reimbursement issues, as well as cost reporting proposals requiring additional clarification, as summarized in the table below.
| # | Issue | FFY 2023 Proposal | Summarized Comment |
| 1 |
Market Basket |
2.7% Update 3.1% Market Basket -0.4% ACA Adjustment |
8.0% Update Based on recent Medicare cost increases[1] |
| 2 | Outliers |
$43,214 Fixed Loss Threshold (40% increase from PY) |
Reduce threshold in anticipation of fewer COVID-19 hospitalizations in FFY 2023 |
| 3 |
UC DSH Factor 1 |
-$542M Reduction to FFY 2023 UC DSH Payments |
-$542M Reduction to FFY 2023 UC DSH Payments Increase Factor 1 discharge adjustment considering forecasts of increased Medicare utilization |
| 4 | UC DSH Factor 2 |
65.71% -0.03 from prior yr -0.07 from penultimate yr |
65.71% -0.03 from prior yr -0.07 from penultimate yr Increase Factor 2 to reflect projections of increases to the national uninsured population |
| 5 | Empirical DSH Section 1115 Waiver Days | Medicaid patients regarded as eligible from 1115 Waiver w/ essential health benefits (EHB) | Clarification on premium assistance days “for which the premium assistance is equal to or greater than 90 percent of the cost of the coverage” |
| 6 | NP95 Respirator Payments | Reimbursement for the incremental cost of using wholly domestically produced N95 respirators | Supported and request CMS reimburse for all patients (not only Medicare) in bi-weekly lump sum payments |
Please feel free to email Fred Fisher at fred.fisher@toyonassociates.com with any questions.
[1] Analysis of Medicare cost per discharge change from FFY 2019 to FFY 2020 per Medicare cost report data from the Healthcare Cost Report Information System (HCRIS). Medicare cost per Worksheet D-1 Part II, Line 49, Column 1. Medicare discharges per Worksheet S-3 Part I L14.00 C13.00.
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