UPDATE: Oct. 20, 2020: Judges with the United States Court of Appeals for the District of Columbia Circuit have denied a request from the American Hospital Association and other plaintiffs to have the case reheard "en banc," before all the judges of the court.
"We are evaluating all of our remaining options to repeal these unlawful cuts, including petitioning the Supreme Court to hear the cases," AHA General Counsel Melinda Hatton said in a statement.
- A significant rate cut for some medications for 340B hospitals was based on a "reasonable interpretation of the Medicare statute" and can stand, the U.S. Court of Appeals for the District of Columbia ruled Friday.
- The 2-1 ruling overturns a district court decision that HHS overstepped its bounds when it cut the reimbursement rate for a certain category of outpatient drugs by 28.5% for hospitals enrolled in the 340B drug discount program.
- The American Hospital Association, which challenged the rate cut along with three individual hospitals, did not immediately respond to a request for comment. An advocacy group for 340B hospitals said in a statement it was disappointed in the ruling and that the rate change has "caused real and lasting pain to safety-net hospitals and the patients they serve."
The decision is another major blow for hospitals, coming two weeks after the same court ruled HHS also acted within its authority when it reduced payments to off-campus hospital outpatient departments.
AHA said this week it is seeking to have that ruling overturned.
HHS made the cut to 340B hospital outpatient drug reimbursement in the 2018 Outpatient Prospective Payment System rule, arguing that those hospitals, which primarily serve low-income populations, get the drugs at a deep discount and thus could be incentivized to overuse them.
The cut was from 106% of the average sales price to 22.5% less than ASP. Hospitals immediately sued, but HHS retained the reduction in the 2019 OPPS. The department has said the change would save Medicare $1.6 billion in 2018.
Writing for the court, Chief Judge Sri Srinivasan said the department did indeed have the authority to make the reduction, "so as to avoid reimbursing those hospitals at much higher levels than their actual costs to acquire the drugs."
He also called the cut "a fair, or even conservative, measure of the reduction needed to bring payments to those hospitals into parity with their costs to obtain the drugs."
In a partially dissenting opinion, Circuit Judge Cornelia Pillard wrote that she believes the statute only allows HHS to make the change for a specific group of hospitals under a clause that requires the agency to use a certain data set it did not use.