A federal appeals court late Wednesday ruled that HHS properly handled the recent overhaul of the nation's system for distributing livers to transplant candidates, but stopped short of upholding the changes.
Three judges on the U.S. Court of Appeals for the 11th Circuit determined that HHS did't need to follow a public notice-and-comment process to alter its liver transplant allocation policy. But a federal district court will need to determine whether the changes affect hospitals' due process rights and other legal standards.
The controversial policy was supposed to be implemented by the United Network for Organ Sharing, or UNOS, this past spring but has been stalled by litigation. Previously, livers were distributed based on geography.
Several hospitals including Emory University Hospital and the University of Michigan sued over the changes and alleged the revised regulation would shift 256 transplants from some states' medical centers into others, citing the government's own projections.
But the appellate judges didn't find the hospitals' claims that HHS should have gone through notice-and-comment persuasive.
"As enticingly straightforward as plaintiffs' argument may be, it's just not how we read law—tidbits and fragments in isolation," Judge Kevin Newsom wrote.
The 11th Circuit acknowledged that more than 12,000 people are currently on the national liver transplant waiting list.
The nation's organ allocation system has long pitted regions and states against one another, since states in the South and Midwest in particular have more livers available for transplant than transplant candidates—the issue has garnered intense political attention in Washington.
Sens. Roy Blunt (R-Mo.) and Jerry Moran (R-Kan.), who represent states that would lose under the new policy, have criticized HHS Secretary Alex Azar over the government's handling of the change and have called for additional review.
