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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 email@example.com if you have any questions.
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CMS recently released new proposed Medicare cost reporting instructions, available for download here on the CMS website. Comments are due to CMS on July 22, and Toyon will be sharing our comments with more details over the coming weeks.
CMS is proposing notable cost report changes to the following:
- Worksheet S-10 Uncompensated Care (UC) reporting for Federal Fiscal Year 2023 (beginning on/after 10/1/2022) and subsequent years.
- Amongst other proposed revisions, CMS proposes a significant change that UC cost represents “only the general short-term hospital inpatient and outpatient services billable under the hospital CMS Certification Number (CCN).”
- CMS proposes a standard Worksheet S-10 data format under Exhibit 3B and Exhibit 3C.
- Empirical DSH Medicaid eligible days reported using Exhibit 3A, with applicable instructions to §4004.1 and requirements at 42 CFR 413.24(f)(5)(i)(C) starting with Federal Fiscal Year 2023 cost reports.
- Medicare bad debt reporting using Exhibit 2A, with applicable instructions to §4004.2 and requirements at CFR 413.24(f)(5)(i)(B) starting with Federal Fiscal Year 2023 cost reports.
- COVID-19 PHE temporary expansion bed reporting. New cost reporting line effective March 1, 2020 through the end of the COVID-19 PHE.
- Worksheet D-4 Organ Acquisition updates and additions.
- CMS updates cost reporting instructions to reflect the codification for Medicare organ acquisition payment policies at transplant hospitals as included in FR 73416 (December 27, 2021).
- For cost reporting periods beginning on or after October 1, 2022, CMS proposes providers separately identify revenue for organs sold associated with Medicare Secondary Payer (MSP organs, subscript of line 66) and a separate subscripted line (informational only) for the transplant payment portion.
- For cost reporting periods beginning on or after October 1, 2022, CMS proposes providers separately identify organs transplanted into Medicare beneficiaries, kidneys transplanted into Medicare Advantage (MA) beneficiaries, organs transplanted as Medicare Secondary Payer, and organs transplanted for all other payers (subscript line 75).
- Worksheet D-6 Allogeneic Hematopoietic Stem Cell Transplant (HSCT) Acquisition Costs
- CMS proposes further changes to this new worksheet series to calculate inpatient reimbursement for allogeneic stem cell acquisition costs associated with Federal Fiscal Year 2021 cost reports (beginning on or after 10/1/2020).
- CMS proposes to apply key changes (from the initial PRA package issued in November 2020) which include basing payment on the ratio of Medicare transplants to total transplants and reporting all-payer charges related to donors (follows the same methodology as solid organ transplants).
Please feel free to share questions or suggestions for comments to Fred Fisher, firstname.lastname@example.org. Specific to organ acquisition, please contact Robert Howey, email@example.com.
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