Bolstered By Favorable District Court Decision, King & Spalding Now Forming Group Appeals Contesting Inclusion of Part C Days in SSI Fraction for FYs 2006 and Later

by King & Spalding

In a recent decision for which King & Spalding organized the appealing group of hospitals and was co-counsel, the D.C. district court ruled that CMS’s regulation requiring the inclusion of Medicare Part C patient days in the SSI fraction of the Medicare DSH formula starting in 2006 was invalid.  In light of this decision, which is available here, and in response to interest expressed by several clients, King & Spalding is now forming group appeals of this issue to the Provider Reimbursement Review Board (Board) for 2006 and later cost reporting periods. Under the Board's rules, if a hospital is the only related hospital appealing a particular issue for a particular fiscal year, that hospital may join with other unrelated hospitals in bringing an appeal of an issue.  Related hospitals appealing the same issue for the same fiscal year must be grouped together.   

CMS has until January 14, 2013 to appeal the district court decision to the D.C. Circuit Court of Appeals.  If CMS does appeal, the appellate decision probably would not be issued until mid-2014.  In the meantime, however, it is essential for providers to protect their appeal rights by filing timely Board appeals (i.e., appeals within 180 days of the issuance of the Notice of Program Reimbursement (NPR)).  Although CMS had instructed fiscal intermediaries not to settle cost reports for DSH hospitals for 2006 forward pending the calculation of “final” SSI numbers, this bar has recently been lifted and DSH hospitals should be beginning to receive NPRs for these cost reporting periods.

While we strongly urge DSH hospitals to include this item as a “protested item” on cost reports filed in the future, a hospital’s failure to do so in prior years is by no means fatal to the provider’s appeal rights.   For one thing, the change in regulation requiring providers, in the absence of an audit adjustment, to have a protest item for a particular issue only applies to cost reporting periods ending on or after December 31, 2008.  This rule, therefore, does not apply to 2006,  2007, or 2008 cost reporting periods.  In addition, in most cases the intermediary will have made an adjustment to the SSI fraction based on CMS’s recomputation of SSI percentages, which itself should be sufficient for Board jurisdiction.  There may be good arguments in support of jurisdiction in other cases as well. 

Similar legal arguments exist for contesting CMS's inclusion of "no Part A payment" days (i.e. non-covered days) in the SSI Ratio and its exclusion of dual eligible no Part A payment days from the Medicaid fraction.  King & Spalding will be forming similar group appeals contesting this CMS DSH policy as well. 

If you are interested in participating in a group appeal of these  issues, or would like further information, please contact Dan Hettich at +1 202 626 9128, or Greg Etzel at +1 713 751 3280,

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© King & Spalding | Attorney Advertising

Written by:

King & Spalding

King & Spalding on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.