Drama on the Hill

On Dec. 21, the Senate passed the Deficit Reduction Omnibus Reconciliation Act of 2005 by the narrowest of margins. The 50-50 tie vote was broken by Vice President Dick Cheney, who returned home early from overseas travel to cast the decisive 51st vote to ensure passage of the measure in the Senate.

In another dramatic move, before passing the $39.7-billion deficit reduction budget bill, the Senate was not able to vote down a Democratic procedural rule designed to derail the DRORA. Democrats raised a point of order under the so-called “Byrd rule,” which is designed to weed out extraneous provisions unrelated to deficit reduction. Republicans could not muster the 60 votes needed to combat it, which resulted in the striking of four provisions of the underlying budget bill.

The Senate passed the bill, but with changes to the package. But because the Senate version differs from the one passed in the House, the bill cannot become law until it is passed in revised form by the House. That is not expected to happen until late this month when the House reconvenes.

This package (without the provisions deleted by the Byrd rule) had been passed by the House on Dec. 19, and contains cuts to Medicaid as well as Medicare’s durable medical equipment benefit. The bill would limit oxygen rental payments to 36 months and transfer ownership at that time, and would limit capped rental payments for other equipment to 13 months and transfer ownership of those items to the beneficiary at the cap.

Following are the DME provisions:

1. Cap payments for home oxygen at 36 months; force beneficiary purchase. The bill will limit monthly rental payments for home oxygen therapy to 36 months. If a beneficiary has a medical need for home oxygen beyond 36 months, title of the equipment will transfer to the beneficiary. If the physician has prescribed portable oxygen, the supplier will continue to be paid the monthly portable “add-on” amount for as long as the medical need continues beyond 36 months. This provision would be effective for oxygen rentals beginning after Jan. 1, 2006; for existing rentals, the 36-month count would begin this month. Ownership transfer would not occur for any oxygen equipment before January 2009.
2. Limit capped rental payments to 13 months; force beneficiary purchase. All payments for capped rental items (manual wheelchairs, hospital beds, nebulizers, CPAPs, etc.) would be capped at 13 months, at which time title of the equipment would transfer to the beneficiary. This provision would be effective for capped rental items being rented beginning Jan. 1, 2006, and after.
3. Maintenance and service payments for oxygen and other capped rental items would be paid for parts and labor, when not under a manufacturer’s warranty, as determined by the HHS secretary.
4. First-month purchase option for power wheelchairs is retained. Current law is retained, allowing beneficiaries to purchase power wheelchairs at the time of issue.

The deficit reduction package contains numerous controversial provisions. Significant DME cuts were shaved at the eleventh hour by House and Senate Ohio legislators, who insisted on eliminating $2 billion in oxygen cuts that had been inserted literally just hours before by House Ways and Means Committee Chairman Bill Thomas, R-Calif.

Specifically, on Sunday, Dec. 18, Rep. Thomas inserted draconian cuts to oxygen in the bill, cuts that had not been included in either the House- or Senate-passed packages. Rep. Thomas included language that would have both capped rental payments for home oxygen and transferred title of the equipment to the beneficiary at the 18th month.

At that point, according to a Washington Post editorial, “When Ohio House Republicans threatened to walk over Medicare cuts that would hurt a home-state manufacturer of medical oxygen tanks, those were stripped out as well.” The industry owes these Ohio legislators a great deal of thanks for minimizing the oxygen cuts.

As we move into 2006, we must develop a thoughtful game plan to have Congress revisit the offensive transfer of ownership and maintenance and service payment issues.

A specialist in health care legislation, regulations and government relations, Cara C. Bachenheimer is vice president, government relations, for Invacare Corp., Elyria, Ohio. Bachenheimer previously worked at the law firm of Epstein, Becker & Green in Washington, D.C., and at the American Association for Homecare and the Health Industry Distributors Association. You can reach her by phone at 440/329-6226 or by e-mail at [email protected].