AHA Files Brief Regarding Remedy for 340B Underpayments

February 6, 2019

The American Hospital Association (AHA) and a group of hospitals filed a brief to US District Court specifying relief for 340B program hospitals that received a thirty percent cut to Medicare payment for drugs provided under the 340B program.  On December 27, a federal judge determined that the payment cut in the 2018 OPPS outpatient rule exceeded HHS’s authority and was unlawful. AHA plans to amend the complaint to also include 2019 claims.

In its brief, AHA recommended that the court require the Department of Health and Human Services (HHS) to calculate and pay the eligible hospitals the difference in payments on the affected claims using existing Medicare claims data.  AHA and plaintiffs said that the repayments do not need to be budget-neutral when they fix a prior, unlawful underpayment.

HHS also filed a brief maintaining its position that the hospitals are not entitled to relief, and that the case should be dismissed.  It told the court that if the court requires relief it should remand the matter back to HHS to determine the proper resolution. The two sides will respond to each other’s briefs by Feb. 14.  (Andrew Busz, andrewb@wsha.org).


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