On June 9, 2023, CMS will publish its Final Action regarding the treatment of Part C days in the Medicare DSH calculation in resolution of Allina II.
CMS will issue NPR's that count Part C days in the Medicare Fraction of the DPP calculation. CMS finds support for its position that Part C days are covered days for which beneficiaries are entitled to Part A benefits in the recent Empire decision which permitted CMS to consider unpaid Medicare days as entitled to Part A and count them in the Medicare Fraction of the DPP calculation.
This Final Action addresses the treatment of Part C day for FFY 2005 through FFY 2013. CMS justifies this retroactive rule using the same logic as was used in the February 1, 2023, RADV Rule which was also retroactive. "Retroactive rulemaking is authorized only when the Secretary determines that retroactive application: (1) is necessary to comply with statutory requirements; or (2) that a failure to do so would be contrary to the public interest."
According to the Final Action, providers will be able to appeal from those NPR's.
The unpublished version is currently available at 2023-12308.pdf (federalregister.gov).
