SSI Ratio Archives

Supreme Court Sides with HHS in Dual Eligible Part A Benefits Case

June 28, 2022

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.

CMS Publishes Federal Fiscal Year 2020 SSI Ratios

March 1, 2022

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: https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/InpatientRehabFacPPS/SSIData

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, dylan.chinea@toyonassociates.com with any questions.

Supreme Court Grants Review of Part A Appeal

July 10, 2021

Last week, the Supreme Court granted CMS’s request for review of the Ninth Circuit Court of Appeals’ decision in Empire Health v. Azar (Case 18-35845), a ruling issued in favor of providers 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.

In May 2020, the Ninth Circuit Court ruled in Providers’ favor, holding that the 2005 Rule promulgated by the Secretary of Health and Human Services be vacated on the grounds that the rule is “substantively invalid.” This ruling, which constituted a departure from rulings on the same issue in the D.C. Circuit and Sixth Circuit Court of Appeals, was issued on the grounds that HHS arbitrarily included non-covered Medicare Part A days in its calculation of the SSI Fraction, in direct conflict with the Ninth Circuit’s longstanding interpretation of the meaning of “entitled to [Medicare].” (Legacy Emmanuel Hospital and Health Center v. Shalala, 97 F. 3d 1261, 1265-66 (9th Cir. 1996)).

According to the Court, “entitled” means the patient has an “absolute right . . . to payment,” whereas the word “eligible” means the patient “simply meets the Medicaid statutory criteria,” and HHS’s decision to treat the words “entitled” and “eligible” synonymously is contrary to the statute.

What it Means to You

Toyon Associates, Inc. has been helping Providers appeal the agency’s implementation of the 2005 Rule relating to non-covered Part A days. Providers’ position has been consistent non-covered Part A days should be excluded from the SSI Fraction and included only in the numerator of the Medicaid fraction.

As the Empire decision constitutes a “circuit split,” Toyon anticipated the Supreme Court’s decision to grant review and is working proactively with our attorney who prevailed in the Empire case to best position our clients’ appeals in court as we head into the next phase of litigation.

What Now?

We will need to wait to see how the Supreme Court rules on this appeal. We anticipate oral arguments will be heard by year-end, with a decision forthcoming in Summer 2022. There is also speculation that this pending Supreme Court decision in the Empire case could bear some implications on the Part C Days litigation, another appeal issue Toyon is actively pursuing for our clients. 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 (925) 685-9312 or karen.kim@toyonassociates.com if you have any questions or concerns.

Tag: SSI Ratio

Supreme Court Sides with HHS in Dual Eligible Part A Benefits Case

CMS Publishes Federal Fiscal Year 2020 SSI Ratios

Supreme Court Grants Review of Part A Appeal

Here TO HELP