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Going Retro: Retroactive Rulemaking Under the Medicare Statute and When is a Rule Really Retroactive

AHLA thanks the leaders of the Regulation, Accreditation, and Payment Practice Group for contributing this feature article.
  • February 01, 2021
  • Caroline L. Wolverton , Akin Gump Strauss Hauer & Feld LLP
  • John R. Jacob , Akin Gump Strauss Hauer & Feld LLP

In August 2020, the Centers for Medicare & Medicaid Services (CMS) issued a Notice of Proposed Rulemaking (NPRM) to address the calculation of the Medicare disproportionate share hospital (DSH) adjustment for certain years as a result of the Supreme Court’s decision in Azar v. Allina Health Services.1 The Supreme Court held in Allina that CMS’ policy for treating Medicare Part C patient days in the calculation violated the Medicare statute because it was not issued through proper notice and comment rulemaking.2 The August NPRM, which CMS said is necessary as a result of the Court’s landmark Allina ruling, is notable for its proposal of a rule that operates retroactively.

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