On October 13, 2022, CMS announced that it will revert to paying the statutory rate of average sales price (ASP) plus 6% for 340B-acquired drugs on a prospective basis. This announcement comes on the heels of a September 28, 2022, federal district court ruling that vacated CMS’s 2022 OPPS Final Rule, which paid hospitals ASP minus 22.5% for 340B drugs.

According to CMS, Medicare contractors are instructed to upload revised OPPS drug files that will apply the ASP plus 6% rate to 340B-acquired drugs for the remainder of the year. CMS also stated that its contractors will similarly reprocess claims that were underpaid paid on or after September 28, 2022. Medicare contractors have gone a step further to instruct providers to “submit adjustments on any claim submitted with the modifier JG with date of service in 2022 that was paid prior to September 28, 2022. Providers should submit the Type of Bill (TOB) xx7 with condition code D9 and remarks indicating “340B adjustment.” Timely filing rules will apply when submitting adjustments, so we recommend adjusting as soon as possible. If adjustments are submitted beyond timely filing, then the TOB will need to be xxQ with the appropriate coding and the remarks indicating ‘340B adjustment.’”

The district court is currently reviewing motions concerning a retrospective remedy for hospitals underpaid by the same defective 340B policy contained in OPPS rules dating back to CY 2018.

CMS’s announcement is available here. An example Medicare contractor announcement is available here.