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Tag: SSI Ratio

CMS Publishes Federal Fiscal Year 2020 SSI Ratios

In late February, CMS issued the Federal Fiscal Year (FFY) 2020 acute care SSI ratios. The FFY 2020 SSI ratios are used for the computation of provider FFY 2020 empirical DSH payments (cost reporting period beginning between 10/1/2019 – 9/30/2020). CMS has not yet released the FFY 2020 Low-Income Patient (LIP) SSI ratios for Inpatient Rehabilitation Facilities.  We expect CMS to issue LIP SSI ratios soon.
Acute SSI ratios: DSH Adjustment and 2019-2020 File (ZIP)
Upon issuance, LIP SSI ratios can be located at:
Medicare DSH Providers in the Ninth Circuit
Similar to FFY 2019,  the FFY 2020 SSI ratios include only “covered” SSI days (as opposed to “eligible” SSI days) for providers in the Ninth Circuit per Empire Health Foundation v. Azar. (“the Empire Case”). The Ninth Circuit decision impacts the SSI ratios for providers in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. The availability of FFY 2020 SSI ratios allow providers, including those in the Ninth Circuit, to preliminarily settle cost reports related to FFY 2020. The Empire Case is currently pending before the Supreme Court. 
All other Medicare DSH Providers
All other DSH hospitals outside of the Ninth Circuit have FFY 2020 SSI ratios consistent with existing CMS regulations (using “eligible” SSI days, as opposed to “covered” SSI days). Although CMS states the FFY 2020 SSI ratios are preliminary, Toyon recommends DSH providers appeal any FFY 2020 cost report whereby an NPR is issued prior to the Supreme Court decision on the Empire Case.  
Please feel free to contact Dylan Chinea at 925.685.9312, ext. 3121, with any questions. 
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Supreme Court Grants Review of Part A Appeal

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CMS Publishes Rule in apparent response to Allina II Ruling

Last week, CMS published a proposed rule on the treatment of Medicare Advantage (MA) Part C days for discharges prior to October 1, 2013, related to the Medicare DSH calculation.

This proposed rule is purportedly CMS’s long awaited response to the United States Supreme Court’s ruling in Azar v. Allina Health Services, 139 S. Ct. 1804 (2019) (“Allina II”), wherein the Supreme Court upheld a lower court ruling that HHS violated the Medicare Act when it changed its DSH reimbursement formula without providing notice and opportunity for comment. 
As you know, 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 on the basis that only Medicare Part A days should be included in the SSI ratio and that dual eligible Part C days belong in the numerator of the Medicaid ratio. While the Supreme Court in Allina II did not rule on the merits of Providers’ position, it did rule that HHS violated its rulemaking obligations by including Part C days in the Medicare fraction between 2004 and 2012. This court ruling should have resulted in CMS restoring the status quo and reinstating HHS’ prior-to-2004 policy (wherein Part C days were NOT included in the Medicare fraction). Such actional would have resulted in substantial additional DSH reimbursement to Providers. 
What it Means to You
Instead, CMS’s proposed rule, published August 6, 2020, states that CMS proposes to “adopt the same policy of including MA patient days in the Medicare fraction that was prospectively adopted in the FY 2014 IPPS/LTCH PPS final rule and to apply this policy retroactively to any cost reports that remain open for cost reporting periods starting before October 1, 2013.” This proposed rule is tantamount to CMS simply disregarding the Supreme Court Allina II ruling in favor of Providers, as the 2014 Final Rule applies CMS’s same flawed policy of including Part C days in the SSI ratio for FYEs 2004-2012. CMS alleges it has the authority to apply this rule retroactively under the guise that it is in the ”public interest.” 85 Fed. Reg. 47,723; 47,725-56 (Aug. 6, 2020).
What now?
Our attorneys (Ropes & Gray) filed a response in the US District Court for the District of Columbia on Friday, objecting to HHS’s proposed rule and requesting the Court entertain further briefing and hearings on HHS’s motion requesting remand of the cases to the agency. A copy of the response is linked here. We will provide you with additional updates as this matter unfolds.
Please contact Karen S. Kim at (925) 685-9312 or if you have any questions or concerns. 
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