Competitive Bidding Takes Effect Today

ATLANTA–Despite the HME industry’s attempts to stop its implementation through legislation, judicial injunction and administrative delay, Medicare DMEPOS competitive bidding begins today.

The rules and requirements of the bidding program are now in effect in the 10 round one competitive bidding areas selected by the Centers for Medicare and Medicaid Services:

Charlotte-Gastonia-Concord, NC-SC
Cincinnati-Middletown, OH-KY-IN
Cleveland-Elyria-Mentor, OH
Dallas-Fort Worth-Arlington, TX
Kansas City, MO-KS
Miami-Fort Lauderdale-Miami Beach, FL
Orlando, FL
Pittsburgh, PA
Riverside-San Bernardino-Ontario, CA
San Juan-Caguas-Guaynabo, PR

After a massive, years-long effort, HME advocates had hoped Congress would delay the program before its scheduled July 1 start date. A Medicare bill including the delay–H.R. 6331, the Medicare Improvements for Patients and Providers Act of 2008–passed the House June 24 with a veto-proof margin of 355-59. But on June 26, the Senate, in a 58-40 procedural vote, failed to act on the measure.

A last-minute push seeking administrative delay of the program also was unsuccessful. And yesterday, two remaining lawsuits seeking injunctions against the bidding program were denied.

The American Association for Homecare had filed suit arguing that competitive bidding resulted in numerous violations of the Medicare Modernization Act, the Small Business Act and the Administrative Procedures Act. U.S. District Judge Ricardo M. Urbina denied the motion, noting in his opinion that “the court concluded that the plaintiffs are unable to demonstrate an irreparable injury.”

A lawsuit funded by Waterloo, Iowa-based VGM and its Last Chance for Patient Choice on behalf of plaintiffs in the Cleveland CBA, which also sought an injunction against the program, was denied by U.S. District Judge Patricia A. Gaughan.

Three other lawsuits challenging the program in several jurisdictions had previously been dismissed or denied.

But proponents for a delay of competitive bidding say the issue is by no means dead.

While recent congressional efforts were a setback, “the competitive bidding issue is not dead by a long shot,” AAHomecare affirmed in a Monday afternoon message.

“When the Senate returns from its July 4 recess on July 8, one of the first priorities will be consideration of the broad Medicare package that failed in a procedural vote last week.

“Calls to the district offices of your U.S. Senators in support of H.R. 6331 will help keep the issue alive during the July 4 recess period. The push for reform and delay of the bidding program has a lot of momentum.”

AAHomecare has set up online forms at www.aahomecare.org so providers, beneficiaries and referral agents can track and report any implementation problems.
Meanwhile, CMS will hold its first monitoring call on the implementation of competitive bidding tomorrow afternoon “to share information from the field” beginning at 3 p.m. ET. The call-in number is 888/848-6501 and the passcode is DMEPOS.