Last Chance for Patient Choice: ‘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. “VGM members have already told
us there are many patients who are outraged with the idea that
their current provider may well be excluded from continuing their
service and are eager to challenge the law.”

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 Jim Walsh, VGM general counsel. VGM said that for
“strategic reasons” 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.

Whether or not the argument is accepted, said Walsh, “we are
entitled to make the arguments necessary to ‘out’ this ridiculous
idea that you can cut price, cut price, cut price and still get the
same levels of quality and service simply by publishing something
called quality standards.”