Sep

Federal Court Judge Puts Hold on His Own Nationwide Injunction

By admin

Federal Court Judge Puts Hold on His Own Nationwide Injunction; Will HHS Resume Use of Invalid Hospice Cap Regulation?

On August 20, 2009, Federal district court judge George Wu entered final judgment against the Department of Health and Human Services (read Final Federal Court Judgment Remand) in favor of NAHA member hospice Los Angeles Haven Hospice on its challenge to the hospice cap regulation. In addition to provisions affecting only Haven Hospice, Judge Wu’s decision included a nationwide injunction precluding HHS from using the invalid regulation to calculate any future cap demands.

NAHA understands that, in the wake of this judgment, Medicare told its fiscal intermediaries to stop issuing new cap demands.

However, on September 11, 2009, Judge Wu put a hold on his own nationwide injunction until this portion of his judgment can be reviewed by the 9^th Circuit, a process that could take up to 2 years. All other aspects of the August 20 judgment remain in place.

Although Judge Wu noted that “there is no significant likelihood that the Secretary of Health and Human Services will prevail on the merits of its underlying claim” that the regulation is valid, Judge Wu also noted that there was a legitimate question whether the broad injunction against further use as to other hospices would be approved on appeal, given that only Haven Hospice was in Court before him. In making this ruling, Judge Wu accepted HHS’ contention that the injunction could disrupt HHS’ ability to administer the hospice benefit.

HHS must now make a choice:

HHS can choose to resume the use of an regulation that has been held invalid by Federal District Judges, twice, because it overstates cap demands and harms hospices.

Or, HHS can voluntarily cease use of the invalid regulation.

NAHA calls on HHS to respect the rule of law, understand the cap crisis facing independent hospice providers, and do the right thing: voluntarily suspend use of the invalid regulation.

NAHA’s Board of Directors is preparing a letter to senior CMS officials and the Secretary of HHS, copied to all of our Congressional representatives, urging HHS to do the right thing.

In light of Judge Wu’s decision, NAHA also urges its members – and all hospices — to be vigilant. In the event any hospice receives a cap repayment demand, we urge each hospice to take an immediate appeal to the PRRB, then take the case to Court, either through the developing Group Appeal of the hospice cap regulation or individually.

Finally, Judge Wu’s decision in no way alters those portions of his August 20 Haven Hospice judgment that (i) hold the regulation invalid, (ii) set aside the FY 06 repayment demand to Haven Hospice, (iii) order HHS to refund or credit prior payments on the FY ‘06 demand, and (iv) award costs and invite Haven Hospice to apply for an award of attorney’s fees.

Judge Wu’s decision to put a hold on the national injunction precluding HHS from issuing cap demands under the invalid regulation further underscores the urgency for:

Every hospice to take action to challenge the regulatory basis for repayment demands it has received, to protect its rights

HHS and Congress to support fiscally responsible reform of the retrospective and flawed 1982 hospice cap statute; such reform is before Congress now as HR 3454 Medicare Hospice Reform and Savings Act of 2009