WASHINGTON — Ignoring pleas from scores of legislators,
consumer organizations and HME associations representing thousands
of home medical equipment providers, CMS refused last month to
rescind the interim final rule for DMEPOS competitive bidding. The
IFR, which requires a rebid of Round One in 2009, went into effect
Saturday, April 18.
"Based upon its review and on the need to ensure that CMS is
able to meet the statutory deadlines contained in [the Medicare
Improvements for Patients and Providers Act of 2008], the
administration has concluded that the effective date should not be
further delayed," CMS said in a statement.
The decision to forge ahead in spite of numerous letters from
federal lawmakers calling for the rule to be rescinded surprised
some industry stakeholders. A bipartisan letter on the rule sent to
HHS, CMS and the Obama administration, contained the signatures of
84 members of Congress. In total, some 100 senators and
representatives weighed in on the rule.
"I really am disappointed. I thought that, at the minimum, they
would delay the program," said Seth Johnson, vice president of
government affairs for
target="_blank">Pride Mobility Products, Exeter, Pa. "I am
quite confident that the CMS statement is not going to be well
received by the members of Congress [who called for the IFR to be
rescinded]."
Tyler J. Wilson, president of the American Association
for Homecare, also said CMS' decision was unexpected. "Given
the problems highlighted in recent months and the congressional
concerns, we are surprised by the decision to move forward," he
said.
Industry Fight Continues
Since issuing the IFR Jan. 16, CMS has been inundated with
individual and collective letters from members of Congress about
the rule. Among serious problems, they said, the IFR does not
adequately address the issues that compelled Congress to halt Round
One of the bidding program two weeks after its implementation last
July.
"They've made absolutely no changes from last year, and that
doesn't sit well with people," said Cara Bachenheimer, senior vice
president of government relations for Elyria, Ohio-based Invacare Corp.
But even with implementation of the IFR, Bachenheimer said, "I
don't think this is the end." She said the industry has an
opportunity to convince the Obama administration that, at the
least, the IFR is fundamentally flawed and should be tabled. And
there are numerous arguments for doing so, she said.
For example, Bachenheimer pointed out that the administration
has already floated the idea of competitive bidding for Medicare
Advantage plans. While there aren't many details as to how that
might be accomplished, there are two that could be helpful to the
HME industry, she said.
"One is that any willing provider can participate," Bachenheimer
explained, contrasting that with the DMEPOS bidding model that
could eliminate as many as 90 percent of the providers in a bidding
area.
Another detail in the industry's favor, Bachenheimer said, is
looking at the way bids are calculated. For Medicare Advantage
competitive bidding, the bids would be calculated based on the
average of all submitted bids rather than on the complicated DMEPOS
formula.
"The ‘any willing provider' is by far the more important
of the two," Bachenheimer said, but both comparisons carry weight
in an argument against the IFR.
Johnson agreed the any-willing-provider card could make a strong
play in the current economy because the IFR would drive thousands
of providers out of business. "Congress is saying that they want to
do everything they can to protect small business," he said, "and on
the other hand, the administration is going forward with these
projects that … are counter-intuitive to those overall
goals."
In a letter to then-HHS Acting Secretary Charles E. Johnson,
Rep. Glenn Thompson, R-Pa., echoed that contention. "In this time
of economic uncertainty, the last thing government should be doing
is creating regulations that will adversely affect small businesses
and remove real competition from the marketplace," he wrote.
So What Now?
Even as CMS rolled out its statement, the industry was moving
ahead.
"I think the next play for the industry … is to build on
the significant support that we have been able to [muster]," said
Johnson. "We need to continue to build support within Congress and
continue to convey the message that competitive bidding must be
stopped."
AAHomecare has convened a task force to discuss options and has
hired a Washington health care consulting firm to develop several
cost estimates for eliminating the bidding program.
There are several tracks the industry can follow, according to
Michael Reinemer, AAHomecare's vice president, communications and
policy. "One is to work with Congress and with the HME community to
figure out whether we can eliminate the program. The sticking point
there would be how much would it cost in a pay-as-you-go
environment," he said.
"The second would be to work with the new appointees at HHS
… to take a hard look at this rule and see what we can do in
addressing the problems through that channel," Reinemer continued.
"And on another track, the Program Advisory and Oversight Committee
will reconvene, so there will be an opportunity there to …
see if all the concerns are thoroughly addressed."
Last fall, CMS unexpectedly ended the term of the first PAOC,
set up to advise the agency on the implementation of competitive
bidding, then formed a new committee
in January. The first meeting of the new PAOC has been set for June
4.
"Because of the expertise represented on the PAOC, it should be
an influential voice in shaping the bidding program," said
AAHomecare's Wilson. "We hope that CMS and the Obama administration
will listen to the advice and suggestions of the PAOC."
Here We Go Again
Meanwhile, VGM
Group, Waterloo, Iowa, has requested that Rep. Bruce Braley,
D-Iowa, who supports a delay in competitive bidding, work with
House Energy and Commerce Health Subcommittee Chair Rep. Frank
Pallone, D-N.J., to include language delaying bidding in his markup
for the health care reform package. (Congressional committees use
the markup process for debating, amending or rewriting proposed
legislation.)
Braley's office said the congressman had been in contact with
Rep. Heath Shuler, D-N.C., regarding possible legislation to stop
the bid program. Shuler, chair of the House Small Business
Subcommittee on Rural Development, Entrepreneurship and Trade, held
a hearing in February on the effects competitive bidding would have
on small business, and has called for its elimination
altogether.
At press time, advocates had also called on newly sworn in HHS
Secretary Kathleen Sebelius to review the bidding program before
its re-start.
In its statement on moving ahead with the IFR, CMS said further
guidance would be issued in the coming weeks on the new Round One
timeline and requirements for bidding, before what insiders believe
will be a 2010 launch date.
Rob Brant, president of the
target="_blank">Accredited Medical Equipment Providers of
America, whose members went to court over bid disqualification
in Round One, said he is ready. "I am fully prepared for Medicare
to begin rolling out timetables for the rebid while they explain
that they are doing their jobs as mandated by Congress," said
Brant, who owns North Miami Beach-based City Medical
Services.
"At that point, the industry will have to pull together again
and request help for legislators to repeal the program based on the
recent cuts in reimbursement, combined with increased quality
standards with mandatory accreditation and surety bonds."
So, déjà vu all over again? Reinemer isn't so sure.
"I think because there are new faces, a new administration and a
new Congress, there are fresh ears," he said. "This is a new ball
game to a certain extent.
"Part of our job," he added, "is to remind people that …
we're part of the continuum of care that takes care of seniors and
those with disabilities and keeps them out of the hospital. We're
part of the solution for Medicare. And that's the message we have
to relentlessly remind people about."
