9th Circuit Lifts Injunction Against Cap on Hospice Care
On Tuesday, March 15, the 9th Circuit Court of Appeals while invalidating Medicare regulations that limit hospice care, lifted a nationwide injunction that had been imposed by the District Court. In Los Angeles Haven Hospice, Inc. (Haven) v. Sebellius, a 3-judge panel on the 9th Circuit Court of Appeals concluded that Haven, located in Los Angeles, is not required to repay over $2.3 Million in Medicare reimbursement that CMS claims it owed in 2006 and upheld the District court injunction on further enforcement of the regulation., but only as to Haven The appellate panel then lifted the nationwide injunction as being beyond the jurisdiction of the District Court, which means that CMS has the ability to enforce the cap nationally on facilities, other than Haven.
The Medicare regulation that was invalidated places a cap on the amount of hospice, also known as end-of-life care, which Medicare will pay for any beneficiary. The 2010 cap was $23,875 per beneficiary, with care generally limited to six months. If a beneficiary lives longer than six months, coverage can be extended for an unlimited number of 60-day periods, according to the ruling. CMS administers the cap so that a beneficiary’s allocation is “lumped” into a single year "without regard to the length of the beneficiary's overall stay," according to the complaint.
Both the District Court and the 9th Circuit panel agreed with Haven, finding that CMS’ administration of the cap was against both federal law and Congressional intent. The opinion states that "[t]he regulation is at odds with the plain language of the statute in that it omits the individualized, proportional allocation calculation expressly called for in the statute, and substitutes an 'alternative' that HHS considers more convenient and less burdensome," and that "Indeed, when HHS first proposed the challenged regulation in 1983, it acknowledged as much."
The Court of Appeals lifted the nationwide injunction against application of the cap against any hospital other than Haven as exceeding the District Court’s jurisdiction. Any hospital with hospice care claims in excess of the applicable cap, the enforcement of which was stayed pending the outcome of this appeal, is now subject to recoupment claims from CMS.
I would expect to see additional lawsuits similar to this one that may very well continue to successfully challenge HHS’ administration of Medicare payments for hospice care. If the goal of health care reform, as enunciated by Mr. Berwick at CMS is to provide patient-focused, quality care at lower cost for a wider number of people, then the 9th Circuit has judicially responded in-kind.
The opinion for Haven Hospice v. Sebellius is located on the 9th Circuit’s website at http://www.ca9.uscourts.gov/opinions/view_subpage.php?pk_id=0000011288
jshafer
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