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Supplemental briefs filed in AHA challenge of CMS rebilling policy

October 31, 2013

The AHA and its five hospital system co-plaintiffs Monday filed a supplemental brief in their lawsuit challenging the Centers for Medicare & Medicaid Services’ continuing refusal to pay for certain claims denied by Recovery Audit Contractors, arguing that the government’s contention that the case is not “ripe” fails to survive the issuance of a final rebilling policy as part of the final inpatient prospective payment system rule for fiscal year 2014. "The argument's premise - that rulemaking is still pending - has evaporated [and t]he Secretary's speculation that rulemaking might result in a 'revision' of CMS' relevant positions also has turned out to be wrong [because] the Final Rule adopts the policies in the proposed rule," the AHA and hospitals said. They also argue that the Health and Human Services secretary may not "arbitrarily label" the lawsuit as seeking to reopen old claims just to make the claims unreviewable by the court. Filed in federal district court in Washington, D.C., the brief responds to the court's request for additional information regarding the effect of the final rule on the government's motion to dismiss the rebilling litigation. In a simultaneously filed brief, the government concedes the plaintiffs’ ripeness argument but attempts to advance a new argument, that the final rule makes the case moot because it supersedes the interim policy being litigated.