Supreme Court Orders HHS to Provide Notice and Comment Period Prior to Rulemaking

Posted on June 07, 2019

In a recent 7-1 decision, the U.S. Supreme Court upheld a decision of the D.C. Circuit Court of Appeals holding Medicare law requires the Department of Health and Human Services (HHS) to conduct notice-and-comment rulemaking before making an initial determination about Medicare disproportionate share hospital (DSH) payments. In late 2018, the MHA joined 13 other state hospital associations in submitting an amicus brief in the case, Azar v. Allina Health Services, arguing in support of requiring a public notice and comment period before determinations are made under Medicare law.

While providers may differ in their support of the underlying determination of HHS, which altered the methodology for calculating Medicare DSH payments for fiscal year 2012, they support this ruling and the precedent it establishes, to require HHS to provide notice and allow for comment before making a determination on a statutory provision under Medicare law.  In upholding the requirement and vacating the new rule, the Court found that the HHS should have provided the public with notice and opportunity for comment at least 60 days prior to changing any substantive legal standard dealing with the payment for services and did not identify a lawful excuse for neglecting its statutory notice-and-comment obligations. For information on the revised Medicare DSH methodology proposed by the Centers for Medicare & Medicaid Services, contact Vickie Kunz at the MHA. For questions on the court’s ruling, contact Amy Barkholz at the MHA.

Tags: Medicare, DSH, Supreme Court, Azar v. Allina Health Services

Posted in: Issues in Healthcare, Top Issues - Healthcare

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