AMARILLO, Texas--While legislative support appears to be growing for a suspension of round one of competitive bidding, it may take legal recourse for HME providers who were disqualified to get their cases heard, according to industry attorney Jeffrey S. Baird.
Baird, chairman of the Health Care Group at Brown & Fortunato, Amarillo, Texas, said some providers who were disqualified and appealed to the CBIC have received letters indicating their documentation has been re-examined and still found wanting--even though many said they have copies of complete documentation that was submitted with their bids.
“I am concerned that the CBIC response is what has gone to most of the companies whose applications were disqualified without justification,” said Baird, adding that the letters appear to be the same except for specifics about which documents the CBIC said were missing.
“In short,” he continued, “it appears that the CBIC will be of no help. Unless the industry receives intervention from Capitol Hill, or unless CMS directs the CBIC to take a different course of action, then the aggrieved companies will have no choice but to go to court.”
“I have seen some of the form letters to providers,” added Michael Reinemer, vice president of communications and policy for the American Association for Homecare. “I think the take-away there is to call your member of Congress because the CBIC is not going to resolve these issues. It appears in many cases that nothing has changed, even though ample evidence was provided that the bid was submitted properly.”
Reinemer said the association is exploring the possibility of filing a lawsuit on the issue.
Meanwhile, other lawsuits targeting competitive bidding are already in the works.
Waterloo, Iowa-based VGM Group, through its Last Chance for Patient Choice, is spearheading two lawsuits against the bid program in the Dallas and Cleveland CBAs.
Last year, the Dallas lawsuit, which, among other things, alleged that Medicare beneficiaries would receive different, lower levels of product and/or service quality and that small HME businesses would be unable to compete under the program, was tossed out because no harm could as yet be proved.
The Cleveland lawsuit alleges that competitive bidding violates the Regulatory Flexibility Act requiring all agencies to “carefully scrutinize ways to minimize the economic impact on small entities."
“We're going to try to get the lawsuit reintroduced in Dallas and try to get additional plaintiffs in Cleveland and move forward with a potential constitutional lawsuit based on due process,” said John Gallagher, vice president of government relations for VGM.
The latter, he said, “is bigger than we can produce,” so VGM is soliciting pledges to support it. “If we can get about $250,000 in pledges from stakeholders across the board, we would move forward [with the due process lawsuit],” Gallagher said.