Deadline Looms; Legislators Ask CMS to Extend Bidding Window

WASHINGTON–With just days left before Medicare’s first-round
competitive bidding window closes, there is blatant evidence that
many providers still have critical questions and concerns about the
bidding process.

But neither those concerns nor the glitches in the bidding
system itself will be enough to stall the bidding deadline, a CMS
official indicated last week.

A last-minute bidders’ conference call sponsored July 9 by CMS
turned into a blitz of questions on all aspects of bidding. Callers
also expressed frustration at being frozen out of the online system
as they tried to place bids.

Joel Kaiser, CMS deputy director of DMEPOS policy, told callers
that the agency had extended the time-out period so providers could
stay in the system for 12 hours before being automatically logged
off. But he offered providers no hope for a bid submission
reprieve. The deadline to submit bids still stands at 9 p.m.
prevailing Eastern Time on July 20. (See HomeCare Monday Special Alert, July
10.)

Even as the clock winds down, attempts are still being made to
modify or halt DMEPOS bidding.

While “all suppliers must operate under the assumption that the
bidding deadline closes as announced,” cautioned Walt Gorski, vice
president of government affairs for the American Association for
Homecare, he added that “we are seeking congressional help through
[letters] to the CMS administrator requesting that certain
fundamental questions be addressed before the implementation of
competitive bidding.”

Separate House and Senate letters from a bipartisan group of
legislators point out that the 60-day bid window does not provide
enough time for providers to get information about the details of
bidding and to get their questions answered, Gorski said. Those
questions relate to product categories and codes–which the letters
say “are too broad and inconsistent to adequately describe
products”–the compressed timeline to submit bids and calculation
of the median price.

Signed by 14 senators and sent out late Friday, the Senate
letter also says the short bid window particularly affects small
suppliers that wish to participate in bidding networks because they
“must develop new business organizations, implement untried
computer systems and address a large number of unresolved policy
issues, including potential violations of antitrust laws.”

“Transitioning to competitive bidding is a significant and
highly complex undertaking,” according to the lawmakers. “While
Congress instructed CMS to begin competitive bidding in 2007, we
strongly believe that due to its direct impact on daily patient
care, it must be implemented carefully and with significant
attention to the effect on patients.”

A similar letter from 52 members of the House was expected to be
delivered today to acting CMS Administrator Leslie Norwalk, Gorski
said. The letters were shepherded by Reps. Tom Allen, D-Maine, and
Sam Johnson, R-Texas; and by Sens. Kent Conrad, D-N.C., and Pat
Roberts, R-Kan.

The association and other industry stakeholders also continue to
seek sponsors for legislative efforts including H.R. 1845, the
Medicare Durable Medical Equipment Access Act of 2007, also known
as the Tanner-Hobson bill; H.R. 621, the Home Oxygen Patient
Protection Act (also known as the HOPP Act); S. 1428, the Senate
companion bill to Tanner-Hobson; and H.R. 2231, the Medicare Access
to Complex Rehabilitation and Assistive Technology Act of 2007.

In addition, Gorski said stakeholders are pushing for inclusion
of the provisions of each bill in the Medicare packages that both
the House and the Senate are currently drafting.

The Tanner-Hobson bill and its Senate companion would allow
qualified providers who submitted bids below the allowable to
continue to participate in Medicare; it would require a complete
analysis of the impact of competitive bidding once it has been
fully implemented in the first 10 cities; and it would prohibit
expansion of the competitive bidding program or the application of
the bid rates to non-bid areas unless specifically authorized by
Congress.

The HOPP Act would rescind a provision in the Deficit Reduction
Act of 2003 that gives ownership and responsibility for oxygen
equipment to patients after 36 months of rental through
Medicare.

H.R. 2231 would carve out complex rehab equipment and assistive
technology from the competitive bidding program.

“We are at the initial stages of this process,” Gorski said
about appealing to congressional members to include the provisions.
“There will be opportunities to influence the process as these
issues work toward conclusion … congressional action may start
becoming more clear as the packages are developed later this
week.”

On yet another front, DME suppliers and beneficiaries who filed
a lawsuit on June 12 seeking to prevent implementation of
competitive bidding are awaiting a response from the
government.

“The U.S. Attorney’s Office has 60 days from the time the suit
was filed to respond,” said Jeffrey Baird, chairman of the Health
Care Group at Brown & Fortunato, PC, Amarillo, Texas, which
filed the suit. “Accordingly, we expect the U.S. Attorney’s Office
to file an answer to the suit in early to mid-August, although it
is possible the government could respond any day now.”