UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
THE AMERICAN HOSPITAL ASSOCIATION, et al.,
Civil Action No. 18-2084 (RC)
XAVIER BECERRA, in his official capacity as the Secretary of Health and Human Services, et al.,
REPLY IN SUPPORT OF PLAINTIFFS’ MOTION TO VACATE
THE UNLAWFUL PORTION OF THE 2022 OPPS RULE
The Department of Health and Human Services (HHS) is asking the Court for permission to continue violating the law, each and every day, for the remainder of 2022. HHS agrees that “the 2022 OPPS Rule is unlawful,” which is an unavoidable concession in light of the Supreme Court’s decision in this case. Opp’n to Pls.’ Mot. to Vacate the Unlawful Portion of the 2022 OPPS Rule (“HHS Opp’n”), ECF 71 at 5 (emphasis added). Yet in the same breath, HHS asks to be allowed to apply its unlawful policy to future reimbursement decisions for a period of time which it alone would determine. HHS’s position should not be countenanced, especially given how much time HHS has had to prepare for the possibility of its policy being held unlawful (at least since the Supreme Court granted certiorari on July 2, 2021) and how long it has known to an absolute certainty that its policy violates the law (since the Supreme Court’s decision on June 15, 2022).
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