Hospitals on Monday urged a federal judge to enforce her ruling that struck down the Trump administration's plan to enact site-neutral payments for doctor's visits.
The CMS is pressing forward with the payment changes in 2020 even though a federal judge ruled against the policy in September because it wasn't budget-neutral.
The American Hospital Association argued that planned 2020 payment cuts for some hospital clinic visits are illegal because the 2020 cuts are a continuation of a policy that U.S. District Judge Rosemary Collyer threw out. They asked her to enforce her decision before the 2020 outpatient prospective payment system takes effect on Jan. 1.
"This is completely improper, and violates both this court's substantive ruling and its order denying the government's motion for reconsideration," the AHA said in a filing announcing its motion.
Thomas Barker, a partner at Foley Hoag and former general counsel at the CMS, said he could not recall an instance of a stakeholder asking a federal judge to enforce a prior decision to invalidate a not-yet-effective rule.
"It may have happened before, but I've never seen it happen in Medicare before," Barker said.
The CMS countered that Judge Collyer's decision cannot apply to the 2020 rule, and that the court does not have jurisdiction over the new rule until payments begin next year.
The CMS included both the site-neutral payment policy and cuts to Medicare Part B reimbursement for hospitals that participate in the 340B drug discount program in its final outpatient PPS rule for 2020 even though federal courts had ruled that both policies were illegal. The site-neutral payment policy would pay doctors the same amount for basic visits in outpatient facilities and regular doctors' offices.
White House Domestic Policy Council head Joe Grogan said he is confident the Trump administration will prevail in court when it defends the two policies. Even if site-neutral payments and the 340B changes are ultimately struck down, Grogan said continuing to push the policies builds a stronger case for congressional action.
"If you are going to be aggressive in policymaking you are going to run a risk that a court is going to hold you up, but at least you can expose an opportunity for legislation to fix the problem," Grogan told reporters at a briefing hosted by the Alliance for Health Policy on Friday.
The CMS is still considering whether to appeal Judge Collyer's decision. The agency has to decide in about a week, as it has 60 days from the judge's decision to file an appeal.
Hospitals in their original complaint projected payment cuts of about $380 million this year and $760 million in 2020.
The CMS estimated the 2020 changes will cut copays for people on Medicare and slash federal spending by $800 million in 2020.
