Industry Ready when Lid Comes Off the Bidding Kettle

ATLANTA — HME advocates took advantage of the
congressional recess last week to push for more cosponsors of H.R.
3790 to repeal competitive
bidding.

As of Friday, the bill had 242 official cosponsors, but “there
is a good chance that we will surpass the 250 mark by [this] week
when we add all the cosponsors who [signed on] during the recess
period,” said Seth Johnson, vice president for government affairs
for Exeter, Pa.-based Pride Mobility Products.

“That’s over half of the U.S. representatives saying they want
to get rid of the bid program,” said Cara Bachenheimer, senior vice
president of government relations for Invacare, Elyria, Ohio.
“There is no question that the more representatives that sign on,
the easier it will be to get this bill through the House. That’s
because the House leadership looks at the number and realizes that
this bill has a majority [and] is therefore not going to be
controversial when it is attached to another legislative
vehicle.”

The industry is also “making some strides” in getting a
companion bill in the Senate, said John Gallagher, vice president
of government relations for Waterloo, Iowa-based VGM, adding that
industry leaders met during the recess with senators about
championing such a bill.

“Our main obstacle remains the chairman of the Senate Finance
Committee and the senior Democrats on that committee. That being
said, remember [that] two years ago we gained tremendous momentum
in the House first, and that forced the issue in the Senate,”
Bachenheimer said, referring to the congressional action that
delayed Round
1.

Gallagher said the biggest issue with stopping competitive
bidding is paying for its elimination. The environment in
Washington demands that new legislation pay for itself and not add
to the nation’s debt load. Since part of the impetus for
competitive bidding is to cut Medicare costs, the industry must
make up the projected Medicare savings if the project is
eliminated.

“We will have a pay-for. We just don’t know what that will be,”
Gallagher said.

Meanwhile, the clock is ticking toward implementation of the new
Round 1 in January 2011. CMS has said it would release bid prices
sometime this month — though Johnson said he has heard that
“those could slip into July” — and contract winners in
September.

According to Gallagher, that timing “is about perfect.” The
industry’s best hope for getting H.R. 3790 through Congress now
lies in getting it attached to a tax-extender bill or a
Medicare-issue bill, both of which are expected to come up for
votes in September, he said. And, he believes, it could be easier
to gain support for H.R. 3790 once Round 1 prices are revealed.

“The pricing will help us to convey to members of Congress the
true facts behind these suicide bids,” Gallagher said.” When they
release the suicide bid rates at the end of this month, we can go
to Congress, the Senate Finance Committee and the Ways and Means
Committee and say these unsustainable bids are going to be out
there.”

The announcement of winners should help the industry’s case even
more, Bachenheimer added. “Until we understand who the winners and
losers are … we likely won’t have great data upon which to
tell our story,” she said.

Johnson agreed. “When the contract award winners, if you want to
call them that, are released in September, that’s when we will
really know more about how CMS is rolling out this competitive
bidding program and a little more about how they evaluated the bids
— who won, who lost and whether there were significant
disqualifications,” he said.

September, said Gallagher, “should be the proverbial time when
the lid is off the kettle and people are screaming mad because they
are out of business. They didn’t win the bid. Now you’ve got real
folks saying, ‘I’ve got 20 employees and I’ve got to let them go.’
And this is critical timing — it’s right before the
elections.”

Court Denies CMS Request

Meanwhile, the industry got a bit of good news last week. A
District of Columbia court ruling opened the door to advancing the
Texas Alliance for Home Care Services’ lawsuit against CMS over its

refusal to release the financial standards for bidding. The
suit asks for a stay of the program until CMS provides the
methodology on how financial stability was determined during bidder
selection.

Citing the Administrative Protection Act, CMS had asked that the
court reconsider its opinion that the agency’s actions were
reviewable. The court denied the request.

“We clearly have a better advantage than we had to begin with
because we have won the initial challenge,” said Barry Johnson,
president of TAHCS. “We think this is a real shot in the arm for
us. We firmly believe we will achieve standing in the court and
move forward to obtain a stay of competitive bidding.

“If we lose H.R. 3790, we still have a way of staying
competitive bidding,” he added.

But because the wheels of justice grind slowly, “I think we’re
going to get 3790 before the lawsuit,” Barry Johnson said. “H.R.
3790 keeps chugging along, and we’ll keep working on that. I think
we will win.”

Bachenheimer said she believes the industry has “a really good
shot” at getting the bill through the House this year. But the
industry can’t be complacent. “We all need to keep up the great
grassroots work because our job is not yet over,” she said.

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