CMS Calls for Comments on Delay of Competitive Bidding IFR

BALTIMORE — CMS has announced it is asking for comments as
the agency considers a delay of the effective date for its competitive bidding interim
final rule. Issued in the waning hours of the Bush administration,
the effective date for the rule was set 30 days after its Jan. 16
publication in the Federal Register. In documentation sent
to Capitol Hill offices Friday, CMS listed that implementation date
as Feb. 17.

Just hours after President Obama took his oath of office Jan.
20, White House Chief of Staff Rahm Emanuel sent a memorandum
recommending that all federal agencies consider a 60-day extension
of the effective date of any regulations that had been published
but had not yet taken effect. The new administration wanted a
chance to review questions of law and policy raised by any pending
regulations, the memo said.

But according to Stacey Harms, manager of government affairs for
the American
Association for Homecare, the agencies “were not required to do
anything under the Emanuel memo … they asked agencies to
consider whether or not to extend the effective dates of those
regulations, but they didn’t have to.”

On Thursday, AAHomecare sent a letter to HHS Acting Secretary
Charles Johnson, with a copy to CMS Acting Administrator Charlene
Frizerra, urging review and rescission of the last-minute
competitive bidding rule.

“While the issuance of interim final rules is generally reserved
for health care emergencies, this clearly was not such a case,” the
letter said. “Instead, the process was corrupted to push through a
Bush Medicare program in the 11th hour of the administration
— defying the spirit of transparent and open government
… We hope that you will exercise the option outlined in [the
White House memo] and review and rescind this rule, which was
rushed into implementation without regard for the negative impacts
the program will have on seniors and home care patients in
America.

“As it stands,” continued AAHomecare President Tyler Wilson,
“the ‘competitive’ bidding program will actually reduce
competition, along with health care quality and access to care for
patients and seniors.”

Earlier in the week, Sen. George Voinovich, R-Ohio, and House
Minority Leader John Boehner, R-Ohio, also sent a letter to Johnson
asking him to rescind the IFR before its effective date and
resubmit a revised version for public comment. According to the
Feb. 2 letter, “In the interim final rule, CMS elected not to
pursue the traditional notice and comment rulemaking. We remain
concerned that many of the recommended changes designed to prevent
future access problems and confusion in the competitive bidding
program were not incorporated or raised for public comment
…

“Thoughtful and deliberate rulemaking by CMS was clearly
anticipated by Congress, given the level of congressional and
stakeholder concern during initial implementation,” the Ohio
legislators wrote. “As such, it would be appropriate for CMS to
publish a proposed rule, ensuring that comments received during the
comment period would be taken into account before any final rule is
published. Such a collaborative and transparent process would be
consistent with Congress’ intent.”

According to AAHomecare’s Harms, a follow-up memo sent by
Emanuel stated that in cases where agencies were contemplating
extension of a regulation’s effective date, the notice-and-comment
period should be reopened for 30 days.

CMS’ Friday notice said comments on delay of the competitive
bidding IFR would be accepted through Thursday, Feb. 12. Since
that’s “a several-day notice,” Harms pointed out, she urged
stakeholders to get comments in quickly and noted they could be
submitted electronically in order to meet the deadline.

That would give CMS “a couple of days to review the comments and
determine whether or not to delay the effective date” of the IFR,
Harms said.

Read the CMS notice in full, which includes instructions
for submitting comments.