Dear Mr. President

To President Barack Obama, members of the United States Senate and the United States House of Representatives:

On Jan. 16, 2009, during the last few days of the Bush administration, the Centers for Medicare and Medicaid Services published in the Federal Register its interim final rule on the durable medical equipment competitive bidding program.

The rule was scheduled to take effect on Feb. 17, 2009, and is related to the July 15, 2008, enactment of the Medicare Improvements for Patients and Providers Act.

We are deeply concerned that CMS has rushed implementation of this rule counter to Congress’ intent when it delayed the competitive bidding program as part of MIPPA. Congress delayed the bid program because it believed CMS’ haste could lead to disastrous results for the 4 million beneficiaries impacted under Round One.

In particular, MIPPA specified certain reforms that must be achieved after receiving many examples of the serious problems the bid program would cause, particularly its restriction of beneficiaries’ access to quality local providers and initiation of home care business closures or bankruptcies across the country.

In the initial implementation of competitive bidding, many questions were raised as to the immediate impact of the program on quality and access to care for patients. Of particular concern was the immediate elimination of thousands of eligible providers throughout the country from the Medicare program.

Of the more than 4,000 providers in the initial bidding areas, only 376 were deemed to have met the bidding program requirements, which were not clearly defined by CMS and its contractor. As growing numbers of seniors enter the Medicare program, it is important that we take care to maintain an adequate number of qualified and capable providers to address demand for care in the home, especially in rural areas.

In fact, we remain concerned that many of the recommended changes designed to prevent future access problems and confusion in the competitive bidding process were not incorporated or even raised for public comment.

Any final rulemaking on this program should, at a minimum, provide assurances that the alleged discrepancies between information submitted by bidders and received by CMS will not again result in the unfair disqualification, without appeal, of longstanding companies in our states that have offered quality home care services for decades. CMS also needs to ensure that its contractor is consistently and properly applying the standards established to qualify providers for participation in the program, notably a provider’s demonstrated capacity to serve a given area and patient population.

We agree that MIPPA addressed near-term concerns, but thoughtful and deliberate rulemaking by CMS was clearly anticipated by Congress given the overwhelming level of congressional and stakeholder concern during initial implementation of competitive bidding. Congress intended that CMS take as much time as necessary in promulgating a new rule to ensure the program would be successful.

Under the circumstances, it would be much more appropriate for CMS to have published a proposed rule, ensuring that comments received during the comment period would be taken into account before any final rule is published. Such a collaborative and transparent process would be consistent with Congress’ intent that CMS take the time to get the process right.

As President Obama announced Jan. 20, executive departments within his new administration will have the opportunity to review and approve any new or pending regulations that the outgoing Bush administration had published in its final days. We hope that strong congressional interest in this program will prompt the new administration to consider rescinding the interim final rule prior to its effective date and resubmitting a revised version for public comment.

The guidance of the recently reconstituted Program Advisory and Oversight Committee would serve the new Obama administration well in developing a revised regulation.

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 at 440/329-6226 or [email protected].