Last Chance: Lawsuits Ready to Go When CMS Is

Waterloo, Iowa

Last Chance for Patient Choice said it is continuing plans to challenge the legality of the DME competitive bidding portions of the Medicare Modernization Act. All the organization is waiting on is additional information from CMS.

Two separate teams of lawyers are making preparations to be ready whenever CMS announces which metropolitan areas will be the “victims of the scheme in the first round of bids,” according to John Gallagher, vice president of Last Chance, an advocacy organization formed by The VGM Group.

“As soon as we know where they are going geographically, we will need to quickly identify beneficiaries in those areas who wish to challenge the law,” Gallagher said.

Last Chance said the suits will likely face an uphill battle in the courts because government programs are often presumed to have constitutional validity.

VGM has selected two law firms that would be within range of a number of the metropolitan statistical areas that might be selected by CMS, according to Jim Walsh, VGM general counsel. For “strategic reasons,” VGM said that it is not disclosing the names of the firms.

In one of the planned court actions, Last Chance will argue that the MMA creates a “second class” of Medicare beneficiaries, which is unconstitutional. That class, according to the group, is created by virtue of the law’s “competitive acquisition” provision, which requires CMS to select a group of low-cost providers to serve Medicare beneficiaries in selected metropolitan areas.

Last Chance plans to argue that the selection process will guarantee that these beneficiaries will be served by providers who will be unable to provide the same level of quality service available to others in the Medicare system not constrained by having to offer the lowest-cost service.