[Congressional Record Volume 152, Number 34 (Thursday, March 16, 2006)]
[Extensions of Remarks]
[Pages E391-E392]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




TENNESSEE CONGRESSIONAL DELEGATION LETTERS TO ATTORNEY GENERAL ALBERTO 
                                GONZALES

                                 ______
                                 

                            HON. JIM COOPER

                              of tennessee

                    in the house of representatives

                        Thursday, March 16, 2006

  Mr. COOPER. Mr. Speaker, I would like to insert into the Record 
letters that the entire Tennessee Congressional Delegation recently 
sent to Alberto Gonzales, Attorney General of the United States and 
Michael O. Leavitt, Secretary of the Department of Health and Human 
Services. These letters discuss the case of Cookeville v. Thompson and 
Section 5002 of the Deficit Reduction Act of 2005. The U.S. District 
Court decision in this case awarded 15 Tennessee hospitals up to $100 
million in Medicare Disproportionate Share Hospital payments.

                                Congress of the United States,

                                   Washington, DC, March 10, 2006.
     Hon. Alberto Gonzales,
     Department of Justice,
     Washington, DC.
       Dear Attorney General Gonzales: We are writing to express 
     our deep concern regarding the recent Motion filed by the 
     Department of Health and Human Services (HHS) to alter the 
     judgment in the case of Cookeville v. Thompson based on 
     Section 5002 of the Deficit Reduction Act of 2005 (DRA). As 
     you will recall, the U.S. District Court decision in this 
     case awarded 15 Tennessee hospitals up to $100 million in 
     Medicare Disproportionate Share Hospital (DSH) payments.
       The U.S. District Court's ruling, which is now being 
     challenged, was based on its rejection of the Centers for 
     Medicare and Medicaid Services (CMS) DSH policy as a 
     violation of the Medicare statute. In CMS' 2000 policy 
     statement announcing the inclusion of certain expansion 
     population individuals in the DSH formula, CMS stated that 
     these individuals would only be included in the DSH 
     calculation prospectively. Hospitals challenged the 
     prospective nature of the policy and were awarded 
     compensation for patients treated prior to 2000.
       At the recommendation of CMS, Congress included a provision 
     in the DRA ratifying the 2000 policy and its prospective 
     application. Tennessee hospitals expressed concern that court 
     decisions directing CMS to pay retroactively could be 
     appealed with the new law. During the reconciliation process, 
     however, CMS continually assured Congressional staff 
     verbally, and by electronic communication, that hospitals 
     which had been successful in litigation would still receive 
     payment. CMS asserted that the new provision would not affect 
     decided cases and would only be applied prospectively.
       In its Motion, however, HHS cites the DRA as support for 
     the reversal of the Cookeville decision. There is no mention 
     that the regulation should only apply prospectively. In fact, 
     HHS' position suggests that recalculation of the DSH formula 
     should not have been required. Congress intended that this 
     provision would only be used prospectively. Thus, hospitals 
     that had been successful in litigation prior to passage of 
     the DRA would still receive payment. Considering the argument 
     made by HHS rests upon the DRA, and that it was our 
     understanding that this provision would not be used to appeal 
     decided cases, we request further explanation of what we 
     believe to be a serious miscommunication by CMS.
       Thank you for your time and attention. We look forward to 
     your prompt response.
           Sincerely,
         William H. Frist, M.D., Majority Leader, United States 
           Senate, Zach Wamp, John Duncan, Jr., Jim Cooper, Marsha 
           Blackburn, Harold Ford, Lamar Alexander, William L. 
           Jenkins, Lincoln Davis, Bart Gordon, John Tanner, 
           Members of Congress.

           
                                  ____
                                Congress of the United States,

                                   Washington, DC, March 10, 2006.
     Hon. Michael O. Leavitt,
     Secretary, U.S. Department of Health and Human Services, 
         Washington, DC.
       Dear Secretary Leavitt: We are writing to express our deep 
     concern regarding the recent Motion filed by the Department 
     of Health and Human Services (HHS) to alter the judgment in 
     the case of Cookeville v. Thompson based on Section 5002 of 
     the Deficit Reduction Act of 2005 (DRA). As you will recall, 
     the U.S. District Court decision in this case awarded 15 
     Tennessee hospitals up to $100 million in Medicare 
     Disproportionate Share Hospital (DSH) payments.
       The U.S. District Court's ruling, which is now being 
     challenged, was based on its rejection of the Centers for 
     Medicare and Medicaid Services (CMS) DSH policy as a 
     violation of the Medicare statute. In CMS' 2000 policy 
     statement announcing the inclusion of certain expansion 
     population individuals in the DSH formula, CMS stated that 
     these individuals would only be included in the DSH 
     calculation prospectively. Hospitals challenged the 
     prospective nature of the policy and were awarded 
     compensation for patients treated prior to 2000.
       At the recommendation of CMS, Congress included a provision 
     in the DRA ratifying the 2000 policy and its prospective 
     application. Tennessee hospitals expressed concern that court 
     decisions directing CMS to pay retroactively could be 
     appealed with the new law. During the reconciliation process, 
     however, CMS continually assured Congressional

[[Page E392]]

     staff verbally, and by electronic communication, that 
     hospitals which had been successful in litigation would still 
     receive payment. CMS asserted that the new provision would 
     not affect decided cases and would only be applied 
     prospectively.
       In its Motion, however, HHS cites the DRA as support for 
     the reversal of the Cookeville decision. There is no mention 
     that the regulation should only apply prospectively. In fact, 
     HHS' position suggests that recalculation of the DSH formula 
     should not have been required. Congress intended that this 
     provision would only be used prospectively. Thus, hospitals 
     that had been successful in litigation prior to passage of 
     the DRA would still receive payment. Considering the argument 
     made by HHS rests upon the DRA, and that it was our 
     understanding that this provision would not be used to appeal 
     decided cases, we request further explanation of what we 
     believe to be a serious miscommunication by CMS.
       Thank you for your time and attention. We look forward to 
     your prompt response.

         William H. Frist, M.D., Majority Leader, Zach Wamp, John 
           J. Duncan, Jr., Jim Cooper, Marsha Blackburn, Harold 
           Ford, Lamar Alexander, William L. Jenkins, Lincoln 
           Davis, Bart Gordon, John Tanner, Members of Congress.

                          ____________________