WASHINGTON — Could a presidential executive order be the
key to revising, if not repealing, the DMEPOS competitive bidding
program? The answer could depend on whether or not President
Obama is keen on enforcing the order, according to a spokesman for
the Center for Regulatory Effectiveness.
"We hope it is a mechanism that can be used. A lot depends on
how interested the [Centers for Medicare and Medicaid Services] is
in following the administration's new policy," said Bruce Levinson
of the CRE, a watchdog organization that has challenged CMS on its
implementation of competitive bidding, as well as its failure to
divulge financial requirements for bidders. "And a second part is,
how willing is the administration in enforcing the new policy?"
In his Jan.18
target="_blank">executive order and two accompanying memoranda,
Obama called on government agencies to "strike the right balance"
in regulatory oversight and not placing undue burdens on
"This order requires federal agencies [to] ensure that
regulations protect our safety, health and environment while
promoting economic growth," the president wrote in an target="_blank">opinion piece in the The Wall Street
Journal. "And it orders a government-wide review of the rules
already on the books to remove outdated regulations that stifle job
creation and make our economy less competitive …
"I am directing federal agencies to do more to account for
— and reduce — the burdens regulations may place on
small businesses," Obama added. "Small firms drive growth and
create most new jobs in this country. We need to make sure nothing
stands in their way."
According to the new strategy, regulations must be
cost-justified and coordinated, transparent and science-driven.
Federal agencies must also consider regulatory approaches that
"maintain flexibility and freedom of choice for the public,"
including disclosure of information.
Levinson, whose career is built around scrutinizing government
rules and regulations, said of competitive bidding he couldn't
think of any other existing program that is the "absolute
antithesis" of the president's call for flexibility and preserving
freedom of choice, not to mention small businesses.
"You're literally decimating small businesses," Levinson said of
the bidding program. "It's probably one of the most needlessly
job-crushing rules — because of the way it was designed
rather than being inherent in the mandatory statute — that I
have ever seen. It is excessively burdensome," he continued, adding
that the president's edict "stresses scientific integrity. This is
a scientific discipline, and [CMS'] competitive bidding design
fails every test."
With predictions of thousands of small HME business closures and
industry job losses that could reach 100,000 under the bidding
program, the president's action does seem to offer an opening for
"The president's executive order on regulations … does
provide us with an opportunity to bring up competitive bidding and
other onerous Medicare regulatory issues with the White House,"
said Michael Reinemer, vice president of communications and policy
for the American Association for Homecare. "We drafted a letter to
President Obama … that outlines some of our concerns and
requests a meeting." (See "AAHomecare Asks
Obama to Review HME Regs".)
Provider Tom Ryan, president and CEO of Homecare Concepts in
Farmingdale, N.Y., was cautious about the possibility the new
strategy could effect any change in competitive bidding.
"We continue to try to get clarity on what the costs are to run
this program. That is one of the biggest unknowns where there is no
transparency," Ryan said. "Just what does it cost to run the
program? They are putting a lot of dollars into administration, and
any savings they are talking about should be net of administrative
The project is also killing business and jobs, he said.
"Providers are already beginning to go out of business, so if Obama
is truly going to be saying what are the regulatory burdens costing
in jobs, we can pretty much say that competitive bidding is costing
jobs," Ryan said. "But, of course, if they just have a one-sided
argument and look at the cost savings and not at the net savings,
then we are at an unfair disadvantage."
For his part, the CRE's Levinson is hopeful the edict will have
some impact. The executive order calls for a retrospective analysis
of existing rules, he pointed out, and the competitive bidding
project would certainly be a candidate for revision or
modification. "It fails the standards set forth in the president's
documents," he said, noting the CMS program's lack of transparency,
inflexibility, inefficiency and immense burden on small
"You're crushing small businesses," Levinson reiterated, "and,
for that matter, some large businesses." He believes it is up to
providers and beneficiaries "to clearly raise CMS' awareness of the
new requirements that the White House is imposing on their
regulatory operations." Then it becomes a question of whether CMS
will comply and whether the White House will enforce the order.
As far as the bid program goes, however, it still comes down to
Congress, said Cara Bachenheimer, senior vice president of
government relations for Elyria, Ohio-based Invacare Corp. The
executive order is "good for messaging," she said, "but in the end,
CMS is unlikely to change the bidding program without Congress
changing the current law."
Read a CRE commentary on the executive order at www.thecre.com/blog/.
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