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Chris Cusimano Sep 1, 2023 3:38:13 PM 1 min read

Advocate Christ and Pomona SSI Fraction Opinions Released

Two long-awaited opinions from the United States Court of Appeals for the District of Columbia Circuit were released today.
In Advocate Christ, despite Empire and other arguments, the court ruled in favor of HHS that the regulation can exclude non-cash benefit SSI days from the numerator of the SSI fraction of the DPP calculation. Moreover, despite the mandate for CMS to provide data for the Medicare DSH calculation in Section 951 of the Medicare Modernization Act, they are not required to provide SSI codes to providers.
In Pomona, hospitals looked headed for a win, but HHS scored at the buzzer to rule the day. Based on precedent, the court remanded the case to the PRRB for a chance for CMS to provide evidence to refute Pomona's claim.
"Although Pomona’s case compels a ruling in its favor “if undisputed,” we do not foreclose the possibility that CMS may be able to dispute it successfully. And if CMS does introduce evidence to dispute it, the burden of proof will remain with Pomona. 42 C.F.R. § 405.1871(a)(3). All we hold today is that Pomona’s showing was robust enough to require some response from the agency."

Advocate Christ Opinion
Pomona Opinion