AHA brief replies to HHS request for free rein to devise 340B payment remedy

The U.S. District Court for the District of Columbia should reject the Department of Health and Human Services’ request to devise on its own timeline a remedy for its 2018 and 2019 underpayments to 340B hospitals, with no limitations and no oversight by the court, AHA told the D.C. court yesterday. 
 
“Despite conceding that it has maintained an unlawful payment policy for five years, underpaying 340B hospitals by billions of dollars, HHS steadfastly refuses to recognize its obligation to promptly repay Plaintiffs and their members,” AHA wrote in a brief replying to the government’s response to the court. “And despite having now had years to devise a remedy in the event of an adverse final decision—and more than three months since the Supreme Court’s ruling—HHS displays absolutely no urgency about implementing a remedy. … Defendants should not be allowed to deny already-suffering hospitals the vital funding to which they are legally entitled. This Court should retain jurisdiction to provide sufficient oversight to ensure HHS promptly effectuates an appropriate remedy.”    
 
Following its unanimous victory in the U.S. Supreme Court this summer, AHA last month asked the district court to order HHS to immediately stop underpaying certain hospitals that participate in the 340B program and promptly repay them for the unlawful cuts since 2018 without penalizing other hospitals. AHA’s August brief noted that nothing in the 340B law authorizes HHS to retrospectively take back these funds, and in similar circumstances HHS has never recouped funds already spent without explicit congressional authorization, which does not exist here.