Power Mobility Rule Takes Effect, but Specter Asks for Do-Over

BALTIMORE–Despite efforts by HME industry groups, lawmakers and
even a lawsuit to delay its implementation, CMS’ new interim final
rule for power mobility devices went into effect on Tuesday. But
things could change with a last-minute amendment to the Senate’s
HHS spending bill, introduced Wednesday by Sen. Arlen Specter
(R-Pa.).

In late September, Specter, along with Sen. Rick Santorum
(R-Pa.), wrote CMS Administrator Mark McClellan asking for a delay
to make transition to the new rule easier. “The absence of a
reasonable period for advance preparation to the change in rules
may overwhelm PMD providers and manufacturers striving to comply
and remain commercially viable,” the senators wrote. (See HomeCare
Monday, Oct. 3.)

In a separate letter Sept. 29, Senate Finance Committee Chairman
Charles Grassley (R-Iowa) also urged McClellan to delay the rule.
On Oct. 6, more than 50 mobility advocates from 20 states converged
on Capitol Hill seeking a delay. And on Oct. 13, the D.C.-based
Power Mobility Coalition filed a federal court motion to stop the
rule.

But CMS–which has decided to delay new power wheelchair
coding–stuck with its Oct. 25 implementation date for the IFR,
though comments on the rule are not due until Nov. 25.

Released on Aug. 26, the IFR created an uproar among mobility
stakeholders. The rule eliminates the certificate of medical
necessity for PMDs, instead requiring providers to submit only a
physician’s prescription for reimbursement of Medicare claims–but
holding them responsible for producing patient records supplied by
physicians that document medical necessity for the equipment.

Many in the industry maintain that CMS did not allow sufficient
time to educate all parties about the changes–particularly
physicians, whose role has been expanded–and to implement
processes to incorporate the new regulations, leading to confusion
surrounding claims and making it more difficult for beneficiaries
to obtain power wheelchairs and scooters.

In its motion, the PMC charged that, in addition to restricting
beneficiary access to PMDs, the IFR would put many of its supplier
members out of business. But on the same day the IFR went into
effect, a federal district court declined to rule immediately on
the organization’s request for a preliminary injunction against the
rule, apparently because of concerns over jurisdictional issues,
according to the PMC.

“The rule creates a new level of uncertainty in the claims
approval process that will drive local suppliers out of the program
and curtail access to needy beneficiaries,” PMC Counsel Steve Azia
said in a statement released after the court’s deferral. The group
said it does expect a ruling on the matter in the near future.

But Specter’s amendment may turn out to be a legislative remedy
for the IFR’s delay. Attached to the Senate’s 2006 appropriations
bill, which includes spending plans for HHS, Labor and Education
(H.R. 3010), the amendment would restrict use of funds to implement
or enforce the rule.

Instead, it requires CMS to withdraw the IFR and reissue a
proposed rule by Jan. 1, 2006. After a 45-day comment period, a
final rule would then be issued by Feb. 14 to take effect April 1,
2006.

The Senate passed the amendment by voice vote, but now the bill
must be approved by the House of Representatives–and then it
requires the president’s signature. According to industry insiders,
both are expected before Thanksgiving with Specter’s amendment
intact.

But until the president signs the bill, the IFR will remain in
effect, pointed out Seth Johnson, director of government relations
at Pride Mobility and chair of the American Association for
Homecare’s Rehab and Assistive Technology Council. “When the bill
is approved by Congress, we hope that CMS will not wait for the
president to sign it before putting this delay into effect,”
Johnson said in a notice from AAHomecare.

To view the interim final rule, click
here.