The leaders of Akin Gump Strauss Hauer & Feld LLP’s reimbursement practice are best known for big wins in cutting-edge cases of first impression. We regularly represent hospitals individually and in group appeals before administrative tribunals and in federal court challenging Medicare, Medicaid and other federal program reimbursement denials. Collectively, the attorneys in our practice have represented more than 1,000 hospitals in appeals involving tens of thousands of fiscal years and approximately $2.5 billion in aggregate claims.
Our practice includes:
- the past chairperson of the Provider Reimbursement Review Board (PRRB), who presided over thousands of cases during her nine-year tenure
- two lawyers who previously served in the Office of the General Counsel of the U.S. Department of Health and Human Services (HHS)
- three partners who have argued hundreds of individual and group appeals before the PRRB and have more than 30 published decisions in the federal courts.
Through the development of creative approaches to novel issues, we have obtained notable successes in several cases of first impression:
- the first and only decision nationwide holding that a generally overlooked provision of the Medicare Act requires notice-and-comment rulemaking even when the Administrative Procedure Act otherwise would not require it
- the first and national lead case on the rural floor budget neutrality adjustment to the Prospective Payment Systems (PPS) rate per discharge
- the first federal court decision requiring HHS to correct previously undisclosed errors and omissions in the calculation of the Medicare Part A/SSI fraction for Disproportionate Share Hospitals (DSH), leading to Ruling 1498-R
- the first and only PRRB hearing and decision on the Children’s Hospitals Graduate Medical Education (CHGME) payment
- the first federal appellate decision overturning the retroactive application of a 2004 change in policy on counting Medicare + Choice (M+C) days in the DSH calculation
- the national lead case on mandamus claims requiring HHS to reopen and revise prior erroneous DSH payment determinations excluding Medicaid-eligible but unpaid days.
We prosecute nearly every type of Medicare appeal from the administrative level through the federal appellate courts. While often handling national lead cases on issues affecting hundreds of hospitals and hundreds of millions of dollars, we regularly handle individual appeals on hospital-specific reimbursement issues. No problem is too big or too small, and all matters receive personal time and attention from one or more of our practice leaders.
Our reimbursement practice is committed to delivering value to clients. We develop and utilize technology and staffing models that enable us to initiate, manage and prosecute appeals efficiently. We utilize sophisticated and unique case management and tracking systems and procedures.
We continually work with the industry’s leading health care experts and analysts to monitor the government’s formulas and calculations to ensure that our clients are receiving fair payment. These alliances, merged with our vigorous legal advocacy, have helped us build Akin Gump’s reputation for having the highest integrity with government policymakers, administrators and contractors. We consistently and effectively build claims on solid facts and sophisticated legal theories.
Akin Gump’s reimbursement team recognizes that extended litigation is not always necessary or the best course. We counsel our clients to maximize the prospect of avoiding disputes and settling their appeals. With the support of one of the largest public policy practices in the country, when appropriate, we also develop multipronged strategies for resolving complex payment issues, including mobilizing congressional delegations and engaging leaders of the executive branch.
Lawyers in our reimbursement practice have had leading roles in the following representative matters:
- Currently representing more than 400 hospitals in pending litigation in federal court challenging a 0.2 percent reduction to the PPS payment rate per discharge, as adopted in conjunction with the promulgation of the so-called “two-midnight” rule.
- Represented approximately 700 hundred hospitals as lead negotiators of a global settlement of the rural floor budget neutrality issue after having successfully overturned the rural floor budget neutrality adjustment to the inpatient PPS payment rates in the national lead case. 630 F.3d 203 (D.C. Cir. 2011). It has been reported that the global settlement involved payment of more than $4 billion to thousands of hospitals across the country.
- Represented a Massachusetts hospital in the first federal appellate decision invalidating HHS’s retroactive application of the agency’s current policy on the treatment of Medicare Part C patient days in the Medicare DSH payment calculation. 657 F.3d 1 (D.C. Cir. 2011).
- Representing more than 30 of the largest DSH hospitals in the lead case challenging a change in DSH policy for periods after 2004. In April 2014, the D.C. Circuit affirmed the district court’s decision vacating the 2004 rule change. 746 F.3d 1102.
- Obtained the first-ever decision from a federal court requiring HHS to correct previously undisclosed errors and omissions in the calculation of the Medicare Part A /SSI fraction for DSH. 545 F. Supp. 2d 20, amended, 587 F. Supp. 2d 37 (D.D.C. 2008).
- Won the lead case among 270 consolidated federal court suits involving over 600 hospitals seeking additional DSH payment for eligible-but-unpaid Medicaid patient days. Successfully opposed the U.S. Solicitor General’s petition for review by the Supreme Court, notwithstanding the government’s assertion of a circuit split on a nationally important issue and $2.8 billion of potential liability for the government. In Re Medicare Reimbursement Litigation, 309 F. Supp. 2d 89 (D.D.C. 2004), aff’d, 414 F.3d 7 (D.C. Cir. 2005), cert. denied, 126 S. Ct. 1672 (2006). Led subsequent negotiations of a global settlement that secured payment of more than $660 million to hospitals involved in the consolidated cases.
- Represented hospitals in appeals to the PRRB and in federal court on several aspects of the Medicare payment calculations for Graduate Medical Education (GME) and Indirect Medical Education (IME), including resident counts, research time, training in unapproved programs, base year average per resident amounts and bed counts.
- Represented a children’s hospital in the first and only proceeding before the PRRB involving payment under the Children’s Hospital GME program.
- Represented public teaching hospitals challenging the denial of federal Medicaid matching funds for GME costs.
- Represented a California hospital in the first federal court case challenging Medicare reimbursement for GME and IME payments for Part C patients. 631 F. Supp. 2d 80 (D.D.C. 2009).
- Represented approximately 50 hospitals in administrative and federal court proceedings challenging Medicare outlier payments involving hundreds of millions of dollars.
- Represented a Catholic hospital chain in the first and only federal court suit setting aside a longstanding Medicare program manual provision governing reimbursement for costs of offshore captive insurance. 617 F.3d 490 (D.C. Cir. 2010).
- Represented a leading cancer center contesting the denial of adjustments to the Tax Equity and Fiscal Responsibility Act (TEFRA) rate of increase ceiling. 650 F.3d 685 (D.C. Cir. 2011).
- Represented hospitals before the Medicare Geographic Classification Review Board and in federal court on classifications for wage index determinations.
- Representing PPS-exempt hospitals with applications to the Center for Medicare & Medicaid Services (CMS) for exceptions and adjustments to TEFRA cost limits.
- Represented hospitals with Medicare volume adjustments, sole community hospital status and other Medicare waivers.
- Successfully litigated aspects of a state’s Medicaid rate-setting methodology that seriously disadvantaged a major cancer center client.
- Currently representing several hundred hospitals challenging provisions of Ruling 1498 on the DSH payment calculation.
Representative Reimbursement Issues
- rural floor budget neutrality adjustments to IPPS rates
- hold-harmless payments under hospital outpatient PPS
- outliers (reconciliation, new providers)
- wage index geographic reclassification
- wage index wage data corrections
- resident counts
- nonhospital sites
- Part C patients
- “didactic” time
- research time
- bed count
- full-time equivalent caps
- three-year rolling average (prior/penultimate year)
- FTE redistribution
- affiliation agreements
- children’s hospital GME
- training in unaccredited programs
- Medicaid eligible days/eligibility codes
- Medicare Part A/SSI fraction
- Medicare + Choice/Medicare Advantage (Part C) days
- labor/delivery days
- dual-eligible days (i.e., Part A exhausted, Medicare secondary payer)
- charity care/Medicaid DSH days
- Section 1115 waiver days
- bed count
- bad debt moratorium
- 120-day presumption on uncollectibility
- accounts at collection agency
- Medicaid “must-bill” policy
Reasonable Cost Reimbursement
- cost limit exceptions
- TEFRA adjustments
- TEFRA rebasing requests
- organ acquisition costs
Other Medicare Payment Issues
- blended payment rates for hospital outpatient services
- sole community hospital status
- Medicare dependent hospital status
- Medicare low-volume adjustment
Jurisdiction Over Medicare Appeals
- lack of audit adjustment
- protest items
- revised NPRs
- lack of available data on cost report filing
Medicaid Payment Issues
- rate setting
- DSH and other supplemental payments
- FFP denials
- state plan amendments / waivers.