On March 2, 2017, United States District Court for the District of New Hampshire issued its order granting summary judgement for the New Hampshire Hospital Association (NHHA) in the case of New Hampshire Hospital Association v. Burwell.
The ruling represents a win for NHHA after a year of litigating over the hospital-specific calculation of the DSH cap. The court concluded that CMS failed to go through notice and comment rulemaking and otherwise lacked the authority to promulgate and enforce guidance issued in January 2010 requiring that Medicare and private payer revenues for dual eligibles be recognized in the DSH limit calculation. The court declined to reach the question of whether such a policy, if enacted through proper rulemaking processes, would be a valid exercise of authority. CMS has issued a proposed rule, which has not been finalized, which would adopt the third party payer policy.