‘No Ifs, Ands or Buts’ on Competitive Bidding

BALTIMORE — Despite a 60-day delay of the competitive bidding interim final rule, the Medicare bidding project will move forward and Round One will be rebid this year. That was the word from CMS’ Joel Kaiser during an agency Open Door Forum Wednesday afternoon.

Congress delayed the DMEPOS bid in July with passage of the Medicare Improvements for Patients and Providers Act. But CMS’ interim final rule — which implements certain provisions under MIPPA — revived the bidding program and was set to take effect Feb. 17. After a memo from the Obama administration advised a delay of pending regulations, however, CMS announced it would stay the effective date of the IFR until April 18.

“The rule pretty much speaks for itself,” said Kaiser, deputy director of DMEPOS policy. “There’s a timeliness issue here. The amendments made to the statute are very specific: For example, rebid Round One … in the same manner in the same areas and the same items. However, don’t bid in Puerto Rico; don’t bid [negative pressure wound therapy] in the first round; don’t bid complex rehab wheelchairs. Those are very specific amendments to the statute.

“There are really no ifs, ands or buts on how you implement those provisions. They are pretty straightforward,” Kaiser told 582 conference call listeners. “The fact is that the law is what it is. It mandates that Round One be rebid and that competition must occur in 2009.”

No decisions have been made yet on a timeline for the rebid, he said. He added that once the transition process from the change in administration is on its way “and we have a timeline and decisions on rebidding, we’ll be announcing that.”

Audience member Eric Sokol of the Power Mobility Coalition asked Kaiser whether there would be “an opportunity for impacted stakeholders to talk about some of the lessons learned in the first round.” For example, he said, “there’s the concern that some providers could be gaming the system” by bidding so low that they were “just bidding to get the contract.”

Responded Kaiser, “We have implemented provisions to safeguard the program against lowball bids, so that really isn’t an issue.” Regarding comments on the rule, he said, the IFR’s original comment deadline of March 17 remains unchanged.

That’s a good thing, according to industry stakeholders, because there are plenty of other issues that need to be addressed.

“CMS has refused to take any industry input [on changes to the program],” said Cara Bachenheimer, senior vice president of government relations for Invacare, Elyria, Ohio. Since Congress delayed bidding, “we have had some logical and practical suggestions, but CMS has continued to refuse to accept them,” she said, noting that extension of the effective date for the IFR “slows down the process and gives us an opportunity to gain support to get rid of it entirely.”

While the comment period would have been “meaningless” before the rule delay — since it concludes 30 days after the IFR was originally scheduled to go into effect — CMS’ delay now gives the industry a chance to air its views, said Pride Mobility Products‘ Seth Johnson. “We really need to take advantage of that to do anything we can to specifically identify for the agency where they need to make changes,” said Johnson, the Exeter, Pa.-based manufacturer’s vice president of government affairs.

Regarding the agency’s full-steam-ahead stance, he said, “I’m not surprised CMS is taking that position. Congress didn’t kill the program, they simply delayed it, and CMS is required to begin moving toward re-implementation. But clearly Congress intended for them to work in an open and transparent manner with the industry to address the numerous issues that ultimately resulted in Congress’ pulling the program.

“We’re really trying to clean up a situation that the previous administration started,” he continued. “The past administration strongly believed that competitive bidding is an appropriate program, and as they were looking to modernize the Medicare system, they were very wedded to that.”

Johnson said he is hopeful the Obama administration will take a different path. “The fact that we were able to get an extension in the effective date of the IFR is a positive sign that the new administration really does want to take a very comprehensive look at the program to determine whether they want to move forward in this direction or go in a different direction … A lot has changed since the rule was published, and I’m optimistic we can work with the new administration to find a way to stop competitive bidding.”

For the present, Bachenheimer said, the industry must pursue “parallel strategies” — both through administrative and legislative means — to derail the program. “But we have to monitor CMS closely,” she said.

View a HomeCare Monday report on the IFR, including a link to its full text.

To submit electronic coments on the IFR, go to www.regulations.gov. Enter file code CMS-1561-IFC and click on “Go.” The left-hand column of the next screen is headed “Narrow Results.” Under “Document Type,” click on “Rules,” and that will take you to the actual rule. Click on “Send a Comment or Submission.” Fill in the information required under “Submitter Information” and your comments. In your comments, refer to file code CMS-1561-IFC.

In another announcement during the Open Door call, Sandra Bastinelli, who oversees CMS’ DMEPOS accreditation program, said the agency had received some questions about a delay in accreditation, “but there has been no delay,” she said. “You must obtain accreditation by Sept. 30, 2009, in order to retain or obtain your Medicare Part B billing number.”

Bastinelli also clarified that physician-owned pharmacies are not exempt from accreditation. If the pharmacy bills Medicare Part B for DMEPOS, it must meet the Sept. 30, 2009, accreditation deadline.

View more information about accreditation requirements and a list of CMS accreditors for DMEPOS.