On October 28, 2020, after previously denying the Secretary of Health and Human Services’ (HHS) request for en banc review, the Ninth Circuit issued a mandate rendering effective its unanimous panel decision on behalf of Empire Health Foundation. In that decision, the Ninth Circuit vacated CMS’s 2005 amendment to its disproportionate share (DSH) regulation in which CMS sought to treat days for which Medicare Part A made no payment, such as exhausted benefit days, as nonetheless being “days entitled to benefits under Part A.” Because the Ninth Circuit vacated HHS’s 2005 amendment to the DSH regulation, and vacatur is not limited to a specific plaintiff or to a specific geography, this decision could directly benefit DSH hospitals throughout the country. Empire Health was represented by the author of this article, King & Spalding healthcare partner Dan Hettich.
CMS’s vacated policy of treating days for which Medicare Part A made no payment as nonetheless being “entitled to benefits under Part A” tended to systematically decrease payments to hospitals that treat a disproportionate share of indigent patients for several reasons. One primary reason is that many patients that have exhausted their Medicare benefits are...
