Hospitals Want Their 340B Recoupments Immediately to Help 'Already-Suffering' Hospitals

The American Hospital Association (AHA) says HHS steadfastly refuses to recognize its obligation to promptly repay hospitals.  

The AHA told D.C courts it should reject HHS' request to devise its own timeline to remedy its underpayments to 340B hospitals with no limitations and no oversight by the court, according to the AHA's recently filed amicus brief.

"Despite conceding that it has maintained an unlawful payment policy for five years, underpaying 340B hospitals by billions of dollars, HHS steadfastly refuses to recognize its obligation to promptly repay Plaintiffs and their members," AHA wrote in its brief.

HHS has had years to find a solution in the event of an adverse final decision—and more than three months since the Supreme Court's ruling—yet it displays absolutely no urgency about implementing a remedy, the AHA said.

"Defendants should not be allowed to deny already-suffering hospitals the vital funding to which they are legally entitled," the brief said. "This court should retain jurisdiction to provide sufficient oversight to ensure HHS promptly effectuates an appropriate remedy."

In July, the Supreme Court unanimously ruled that cuts to hospital reimbursement under the 340B drug discount program were unlawful.

The justices said that HHS' failure to survey hospital costs before enacting the cuts exceed the agency's authority under the Medicare statute, making the decision to reduce 340B reimbursement unlawful.

The ruling is the culmination of a court battle stretching back to 2017, when CMS finalized cuts to hospital reimbursement under the 340B program in the 2018 outpatient prospective payment system final rule.

Following the ruling, the AHA asked the district court to order HHS to immediately stop underpaying certain hospitals that participate in the 340B program and promptly repay them for the unlawful cuts since 2018 without penalizing other hospitals.