Failure of Senate vote dashes hopes of stay before July 1; industry seeks administrative delay
WASHINGTON--Barring an 11th hour reprieve, national competitive bidding for Medicare DMEPOS will take effect tomorrow after the Senate, by a crushing single vote on Thursday, failed to act on its delay.
Sixty votes were needed to invoke "cloture," or end debate over H.R. 6331, in which the language for a delay is included, and take it to a vote. But the motion for cloture failed, 59 yeas to 40 nays. Senate Majority Leader Harry Reid, D-Nev., then swapped his “yea” for a “nay” so, under congressional rules, the bill could be reconsidered when legislators return from their holiday recess next week.
“Congress is out for one week ... when it will return and will continue efforts to pass a Medicare bill," said Cara Bachenheimer, senior vice president of government relations for Invacare, Elyria, Ohio. "Our immediate issue is, therefore, that we will not obtain a legislative delay of the bid program prior to the July 1 implementation date. Instead, it is likely that Congress will pass a Medicare bill, with a delay of the bid program, sometime during the week of July 7.”
Bachenheimer stressed the Senate vote did not reflect disapproval of the proposed delay but was instead tied to Medicare Advantage cuts. For weeks, Democrats and Republicans in the Senate have been wrangling over how to pay for a Medicare “doc fix” in order to avert a 10.6 percent cut in physician payments, also scheduled to take effect July 1.
“Many Republicans did not vote for cloture because they oppose the level of cuts to Medicare managed care organizations [proposed to pay for the doc fix],” Bachenheimer said. “Our provisions delaying the competitive bid program, and the provisions that would prevent the physician community from taking a 10 percent cut, are not controversial.”
Bachenheimer said it is unclear at this point whether the Senate would continue its consideration of the House bill or would instead consider a compromise package with fewer Medicare managed care cuts.
“In the latter case, the House would have to vote on a compromise package,” she said. “In either event, we expect our competitive bid program delay provisions would remain in either package.”
On Tuesday, the House of Representatives buoyed the industry with its passage of H.R. 6331 by a vote of 355 to 59 (see HomeCare Monday Special Alert, June 24). News of the failed vote in the Senate distressed stakeholders who have poured massive amounts of time and energy into getting a legislative delay of the CMS bidding project.
“The House vote was surprising in that they were able to pass it by such a super veto-proof margin,” said Seth Johnson, vice president for government relations for Pride Mobility Products, Exeter, Pa. “And the Senate vote was very disappointing.”
Congress adjourned Friday for its Fourth of July recess, leaving no possibility of any further legislative action until members return to Capitol Hill. So, with just one day before competitive bidding is to go into effect, a last-ditch means for halting implementation would require Department of Health and Human Services Secretary Michael O. Leavitt to issue an administrative delay.
“We are pushing for an administrative delay,” said Don Clayback, vice president of government affairs for Lubbock, Texas-based The MED Group. “I think it is certainly warranted. Basically, CMS has said all along that they are operating under a mandate from Congress. Well, the House overwhelmingly is pushing for a delay and the Senate fell just one vote short. So this is an updated mandate coming from Congress, saying, ‘Delay this and fix the problems.’”
On Friday, numerous industry organizations urged stakeholders to contact Leavitt’s office and plead for a delay. Rob Brant, president of the Accredited Medical Equipment Providers of America, fired off a letter to Leavitt asking for the action.
“AMEPA is … requesting that CMS immediately announce a postponement of the implementation of the competitive bidding program in DMEPOS for no more than 31 days (to Aug. 1, 2008) to allow Congress to act,” Brant wrote. “Such a move will minimize the confusion, concern and serious problems to patients as well as major disruptions of service, with virtually no perceivable downside.”
The industry has been vocal about its concerns for beneficiaries should competitive bidding be implemented. Confusion will only grow, advocates say, should the program begin, then be halted a short time later.
“Already there is mass confusion for beneficiaries,” said Johnson. “The more this moves forward, the more beneficiaries are going to be convinced that this is the way it is. And then to have it pulled back two weeks later or so would be very confusing to all parties.”
Medicare said Friday it would hold new physician claims for 10 business days--essentially freezing current pricing--to give Congress time on its return to get a Medicare bill passed averting the doctors' cuts. There was no word, however, on an administrative move to delay NCB, and neither Bachenheimer nor Clayback was particularly hopeful.
"We do not expect the White House to agree to such a request," Bachenheimer said.
“Unfortunately,” added Clayback, “we haven’t really seen evidence that CMS is open to seeing the problems and taking corrective action.”
Still, HME organizations encouraged everyone in the industry to continue to lobby for a postponement. Adding the industry voice to that of, for example, the American Medical Association--whose members are furious over the Senate’s failure to stop the physician pay cut--could have the desired effect, they said.
On Friday, AMA President Nancy H. Nielsen, M.D., issued a statement that said, in part, “The physicians of America are outraged that a group of Republican senators followed the direction of the Bush Administration and voted to protect health insurance companies at the expense of America’s seniors, disabled and military families … Today, thanks to some senators, we stand at the brink of a Medicare meltdown.”
Nielsen added, “The Senate must return from their recess and make seniors’ health care their top priority. For doctors, this is not a partisan issue--it's a patient access issue.”
Bachenheimer said she anticipated that some “very angry” physicians would press their case during the week congressional members were at home.
“It is critical that we keep up the heat as well to ensure Congress understands how critical it is to act quickly upon their return and pass a Medicare package that includes a delay of the bid program,” she said.
Clayback surmised that the Republicans who were not supportive of the measure will “get so much pressure from the physician community, they will be anxious to pass [the bill] just as it is.”
“We need to continue to remain vigilant for another three to four weeks and, hopefully, this will be all over,” Johnson said.
And in a Friday post on its Web site titled “We lost the skirmish – not the battle and certainly not the war,” Waterloo, Iowa-based VGM noted Thursday's Senate vote “was only a procedural event. We are still in the fight to delay competitive bidding … CALL YOUR SENATORS NOW!”
Meanwhile, CMS Deputy Administrator Herb Kuhn has been meeting with contracted providers in the initial 10 competitive bidding areas, and the agency has said they must be prepared for the program's rules and requirements to go into effect tomorrow.