CMS Delays Competitive Bidding IFR

BALTIMORE — Maybe it’s an early Valentine’s Day present from CMS: Late this afternoon, the agency announced a 60-day delay of the effective date of the competitive bidding interim final rule to April 18, 2009.

After publishing a notice on its contemplation of the rule delay earlier this week, the announcement comes only one day after comments on the delay were due.

Issued in the last days of the Bush administration, the interim final rule includes a rebid of Round One in 2009 and details regulatory requirements related to changes made to the DMEPOS bidding program by the Medicare Improvements for Patients and Providers Act of 2008 (MIPPA). Passed in July, MIPPA delayed the bidding program, but CMS revived it with the interim final rule published Jan. 16.

The effective date for the rule was set just 30 days after its publication in the Federal Register — Feb. 17. But on Jan. 20, White House Chief of Staff Rahm Emanuel sent a memo advising that all federal agency heads should consider extending the effective date of regulations that had been published but had not yet taken effect “for the purpose of reviewing questions of law and policy raised by those regulations.” Following that memo, CMS said last Friday it was asking for comments on the rule by Feb. 12.

In comments submitted yesterday, the American Association for Homecare stated:

CMS did not fully consider the circumstances driving Congress’ decision to delay Round One under § 154(b), even though CMS was fully engaged at every stage of the negotiations and understood what Congress wanted to accomplish. By rushing to publish the IFR, CMS closed any possibility of addressing on a public record, stakeholders’ recommendations or objections to moving forward with a new Round One. When the IFR is analyzed in this context, we see important reasons to delay its implementation for at least 60 days so that the new Administration can fully vet all the relevant factual, legal, and policy issues surrounding this rule.

On Wednesday, Rep. Heath Shuler, D-N.C., convened a congressional hearing on the effects of the Medicare bidding program on small businesses. Following the testimony of several independent providers about the program’s harmful effects on local home care companies and their patients, Shuler called for an end to the program.

“While today’s delay gives the HME sector some temporary reprieve, everything about CMS’ handling of the competitive bidding program from the very outset has been troubling,” commented AAHomecare President Tyler Wilson in a release.

“Starting with the mismanaged implementation in 2008, through the mischaracterization of the program as a fraud prevention effort, to the rush earlier this year on Jan. 16 to ramrod the program through under the cover of the previous administration on its very last day, CMS seems intent on being confrontational with the HME community. Now, with some respite in the process, I hope that CMS will circle back and conclude they should work with home care providers through the [Program Advisory and Oversight Committee] and other means to make sure the reimplementation is free of flaws.

“Or better yet,” Wilson continued, “CMS should work with the HME community to convince Congress that the bidding program will harm beneficiaries and providers alike and should be scrapped.”

While the effective date of the IFR has been delayed, the original comment period on the rule remains unchanged, with comments due March 17.

View the CMS notice.

See the CMS Web site at www.cms.hhs.gov/CompetitiveAcqforDMEPOS for additional information.

View a HomeCare report on the competitive bidding interim final rule.