Memorandum in Support of Motion to Dismiss New Claim with Respect to 2019 OPPS Rule

February 22, 2019

The Court concluded that the defendants – the U.S. Department of Health and Human Services and its Secretary (referred to collectively throughout as “the Agency”) – acted in an ultra vires fashion by reducing the payment rate for drugs purchased through the 340B Program in the 2018 Outpatient Prospective Payment System (“OPPS”) Rule, 82 Fed. Reg. at 52, 362. Memorandum Opinion (“Op.”), Dec. 27, 2018, ECF No. 25. Plaintiffs have supplemented their complaint to challenge the analogous payment reduction in the 2019 OPPS Rule, Supplemental Compl., Feb. 8, 2019, ECF No. 34-3, and have filed a motion for a permanent injunction with respect to that rule, Motion for A Permanent Injunction Covering the 2019 OPPS Rule, Feb. 11, 2019, ECF No. 35.

The Court should deny plaintiffs’ motion and dismiss the claims related to the 2019 OPPS Rule. The arguments provided in defendants’ motion to dismiss and opposition to plaintiffs’ motion for a preliminary injunction with respect to the 2018 OPPS Rule provide ample bases for rejecting plaintiffs’ current motion and for dismissing their new claim, see Defendants’ Motion to Dismiss and Opposition to Plaintiffs’ Preliminary Injunction Motion, Sept. 14, 2018, ECF Nos. 14-15; Reply in Support of Defendants’ Motion to Dismiss, Oct. 10, 2018, ECF No. 20, and defendants incorporate those arguments as if stated here. Defendants recognize that the Court has rejected those arguments in the context of the 2018 OPPS Rule, but respectfully request that the Court reconsider its conclusion in the context of the 2019 OPPS Rule.

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