Health Law Matters

SCOTUS to Hear Disproportionate Share Hospital Case

Highlights from the Week in Health Law

  • Two cases hit the news recently involving disproportionate-share hospital (“DSH”) payments made to facilities treating a high number of indigent patients.
  • The Supreme Court of the United States will hear arguments this week in a case involving whether the U.S. Department of Health and Human Services (“HHS”) can recalculate its Medicare DSH payments without going through the full rulemaking process, which includes public input on the change.
  • HHS petitioned the high court to hear the case after losing in the D.C. Court of Appeals. HHS estimates it will have to pay $3–4 billion additional dollars in DSH payments if it loses the case. The lawsuit stems from HHS's decision to factor Medicare Advantage patients along with traditional Medicare Part A patients into its calculation of the fraction used to determine DSH payments.
  • The appeals court opinion was authored by the newest justice, Brett Kavanaugh. He agreed with hospital plaintiffs that HHS was wrong to unilaterally decide to lump the Medicare Advantage enrollees in with traditional Medicare enrollees to formulate the DSH calculation. 

More trending Health Law topics this week:

  • CMS Puts DSH Policy on Hold for Appeal


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Brian F. Higgins is an associate in FBT's regulated business group with a focus on health care, and he has a history as corporate counsel to Medpace, Inc., a pharmaceutical clinical research organization.