AHA, Associations, Hospitals Remedies Reply Brief

Introduction

On December 27, 2018, this Court found that the Secretary of HHS had exceeded his authority under 42 U.S.C. § 1395l(t)(14)(A)(iii)(II) in setting the 340B drug reimbursement rates in the 2018 OPPS Rule and ordered the parties to, within 30 days, submit supplemental briefs on the appropriate remedy. Defendants sought and were granted an extension of time to file their remedies brief, but, even with that extension, instead of filing a brief proposing an appropriate remedy, as this Court had ordered, Defendants filed a brief challenging the Court’s holding and asking the Court to simply remand the case to HHS. Defendants claim that the Court should allow them unilaterally, on their own time schedule, to decide what remedy they should provide, if any. As Plaintiffs have demonstrated, however, there is a straightforward method by which HHS can make whole the Hospital Plaintiffs and member hospitals of Association Plaintiffs (hereinafter 340B hospitals) that received the reimbursement reductions that this Court found to be ultra vires.

This Court should reject Defendants’ attempt to re-litigate the merits of the case or, alternatively, to decide on their own if the 340B hospitals are entitled to relief and if so what that relief might be. Defendants’ proposal is nothing more than an attempt to further delay resolution of this matter, which Plaintiffs have been attempting to resolve since the illegal reductions in reimbursements for 340B drugs were first proposed 19 months ago. Instead this Court should direct Defendants to make 340B hospitals whole in the simple and expeditious manner proposed in Plaintiffs’ opening brief.