As hospitals continue to grapple with payment pressures under the calendar year (CY) 2026 Hospital Outpatient Prospective Payment System (OPPS) final rule, a more complex challenge is taking shape: CMS’s finalized drug acquisition cost survey. What may appear to be a routine reporting exercise carries significant financial, compliance, and litigation risk—risks that will extend well beyond the survey period itself.

During this webinar, McDermott Will & Schulte’s healthcare regulatory and reimbursement lawyers discussed:

• An in-depth look at the CMS drug acquisition cost survey
• Why the survey represents a strategic inflection point for hospitals
• Practical considerations for navigating survey participation, data integrity, and potential reimbursement and enforcement implications

Top takeaways included:

1. Survey response is expected by CMS. While CMS expects hospitals to respond, the statutory penalty and enforcement mechanisms for non-participation remain unclear. Nevertheless, CMS has suggested potential consequences of non-response, and hospitals should carefully assess both participation and non-participation risks.
2. Clear documentation is critical. In the event of future audits or reviews, decision-making should be documented regardless of whether a hospital responds.
   1. Hospitals should memorialize their internal decision-making process supporting why they chose to respond or not respond.
   2. For hospitals that opt to participate, any interpretations or assumptions made in the survey response should be identified in advance and applied consistently. Hospitals should retain records explaining how and why those interpretations were made.
3. Significant uncertainty remains. Key questions around participation, data quality, and data use remain unanswered, including how many and which types of hospitals will respond and how CMS will use survey data to adjust OPPS payment rates. Any changes to payment methodology would occur through future notice-and-comment rulemaking, which CMS has suggested would likely begin in late 2026.
4. Confidentiality protections are limited. Survey data may be shared within the Department of Health and Human Services and the Executive Office of the President. Individual hospital data could potentially be disclosed through Freedom of Information Act requests or other mechanisms, while aggregate data may be used in future rulemaking.

For more information on this topic, read our prior client alert: Strategic defenses and the “silence option” in the CY 2026 OPPS drug cost survey.