Competitive Bidding Countdown

Failure of Senate vote dashes hopes of stay before July 1;
industry seeks administrative delay

WASHINGTON–Barring an 11th hour reprieve, national competitive
bidding for Medicare DMEPOS will take effect tomorrow after the
Senate, by a crushing single vote on Thursday, failed to act on its
delay.

Sixty votes were needed to invoke “cloture,” or end debate over
H.R. 6331, in which the language for a delay is included, and take
it to a vote. But the motion for cloture failed, 59 yeas to 40
nays. Senate Majority Leader Harry Reid, D-Nev., then swapped his
“yea” for a “nay” so, under congressional
rules, the bill could be reconsidered when legislators return from
their holiday recess next week.

“Congress is out for one week … when it will return and
will continue efforts to pass a Medicare bill,” said Cara
Bachenheimer, senior vice president of government relations for
Invacare, Elyria, Ohio. “Our immediate issue is, therefore, that we
will not obtain a legislative delay of the bid program prior to the
July 1 implementation date. Instead, it is likely that Congress
will pass a Medicare bill, with a delay of the bid program,
sometime during the week of July 7.”

Bachenheimer stressed the Senate vote did not reflect
disapproval of the proposed delay but was instead tied to Medicare
Advantage cuts. For weeks, Democrats and Republicans in the Senate
have been wrangling over how to pay for a Medicare “doc
fix” in order to avert a 10.6 percent cut in physician
payments, also scheduled to take effect July 1.

“Many Republicans did not vote for cloture because they
oppose the level of cuts to Medicare managed care organizations
[proposed to pay for the doc fix],” Bachenheimer said.
“Our provisions delaying the competitive bid program, and the
provisions that would prevent the physician community from taking a
10 percent cut, are not controversial.”

Bachenheimer said it is unclear at this point whether the Senate
would continue its consideration of the House bill or would instead
consider a compromise package with fewer Medicare managed care
cuts.

“In the latter case, the House would have to vote on a
compromise package,” she said. “In either event, we
expect our competitive bid program delay provisions would remain in
either package.”

On Tuesday, the House of Representatives buoyed the industry
with its passage of H.R. 6331 by a vote of 355 to 59 (see HomeCare Monday Special Alert, June
24). News of the failed vote in the Senate distressed
stakeholders who have poured massive amounts of time and energy
into getting a legislative delay of the CMS bidding project.

“The House vote was surprising in that they were able to
pass it by such a super veto-proof margin,” said Seth
Johnson, vice president for government relations for Pride Mobility
Products, Exeter, Pa. “And the Senate vote was very
disappointing.”

Congress adjourned Friday for its Fourth of July recess, leaving
no possibility of any further legislative action until members
return to Capitol Hill. So, with just one day before competitive
bidding is to go into effect, a last-ditch means for halting
implementation would require Department of Health and Human
Services Secretary Michael O. Leavitt to issue an administrative
delay.

“We are pushing for an administrative delay,” said
Don Clayback, vice president of government affairs for Lubbock,
Texas-based The MED Group. “I think it is certainly
warranted. Basically, CMS has said all along that they are
operating under a mandate from Congress. Well, the House
overwhelmingly is pushing for a delay and the Senate fell just one
vote short. So this is an updated mandate coming from Congress,
saying, ‘Delay this and fix the problems.’”

On Friday, numerous industry organizations urged stakeholders to
contact Leavitt’s office and plead for a delay. Rob Brant,
president of the Accredited Medical Equipment Providers of America,
fired off a letter to Leavitt asking for the action.

“AMEPA is … requesting that CMS immediately announce
a postponement of the implementation of the competitive bidding
program in DMEPOS for no more than 31 days (to Aug. 1, 2008) to
allow Congress to act,” Brant wrote. “Such a move will
minimize the confusion, concern and serious problems to patients as
well as major disruptions of service, with virtually no perceivable
downside.”

The industry has been vocal about its concerns for beneficiaries
should competitive bidding be implemented. Confusion will only
grow, advocates say, should the program begin, then be halted a
short time later.

“Already there is mass confusion for beneficiaries,”
said Johnson. “The more this moves forward, the more
beneficiaries are going to be convinced that this is the way it is.
And then to have it pulled back two weeks later or so would be very
confusing to all parties.”

Medicare said Friday it would hold new physician claims for 10
business days–essentially freezing current pricing–to give
Congress time on its return to get a Medicare bill passed averting
the doctors’ cuts. There was no word, however, on an administrative
move to delay NCB, and neither Bachenheimer nor Clayback was
particularly hopeful.

“We do not expect the White House to agree to such a request,”
Bachenheimer said.

“Unfortunately,” added Clayback, “we
haven’t really seen evidence that CMS is open to seeing the
problems and taking corrective action.”

Still, HME organizations encouraged everyone in the industry to
continue to lobby for a postponement. Adding the industry voice to
that of, for example, the American Medical Association–whose
members are furious over the Senate’s failure to stop the
physician pay cut–could have the desired effect, they said.

On Friday, AMA President Nancy H. Nielsen, M.D., issued a
statement that said, in part, “The physicians of America are
outraged that a group of Republican senators followed the direction
of the Bush Administration and voted to protect health insurance
companies at the expense of America’s seniors, disabled and
military families … Today, thanks to some senators, we stand
at the brink of a Medicare meltdown.”

Nielsen added, “The Senate must return from their recess
and make seniors’ health care their top priority. For
doctors, this is not a partisan issue–it’s a patient access
issue.”

Bachenheimer said she anticipated that some “very
angry” physicians would press their case during the week
congressional members were at home.

“It is critical that we keep up the heat as well to ensure
Congress understands how critical it is to act quickly upon their
return and pass a Medicare package that includes a delay of the bid
program,” she said.

Clayback surmised that the Republicans who were not supportive
of the measure will “get so much pressure from the physician
community, they will be anxious to pass [the bill] just as it
is.”

“We need to continue to remain vigilant for another three
to four weeks and, hopefully, this will be all over,” Johnson
said.

And in a Friday post on its Web site titled “We lost the
skirmish – not the battle and certainly not the war,”
Waterloo, Iowa-based VGM noted Thursday’s Senate vote “was
only a procedural event. We are still in the fight to delay
competitive bidding … CALL YOUR SENATORS NOW!”

Meanwhile, CMS Deputy Administrator Herb Kuhn has been meeting
with contracted providers in the initial 10 competitive bidding
areas, and the agency has said they must be prepared for the
program’s rules and requirements to go into effect tomorrow.