BALTIMORE — In a move that could constrict provider choice, CMS is proposing tightening up the grandfathering provision for the new round of DMEPOS competitive bidding, according to the 2010 physician fee schedule proposed rule published in today's Federal Register.
Tucked deep in the 1,128-page document, the provision revises the definition of "grandfathered" items to include all rented items within a product category.
"Under the old competitive bidding rule, if you were not a contract supplier, i.e., a loser, you could make a decision on a code-by-code basis on whether or not you would continue to provide that product to the beneficiary under the new bid rate," explained Cara Bachenheimer, senior vice president of government relations for Elyria, Ohio-based Invacare. "Under this [provision], your decision has to be product category by product category."
For example, under the proposed revision, providers who want to be grandfathered in for walkers cannot pick and choose the walkers to which they want to a grandfathered provider.
"If a supplier chooses to become a grandfathered supplier for any item in a product category, it must agree to be a grandfathered supplier for all items it is renting in that product category at the time the competitive bidding program goes into effect, rather than making separate grandfathering choices for each individual [HCPCS] code," the CMS proposal says.
Bachenheimer said it was tough to predict the effect of such a change.
"I'm honestly not sure what impact that change will have … it gives the supplier less flexibility in making those decisions," she said.
More worrisome to her, she said, is another aspect of the proposal that calls for providers to notify beneficiaries three separate times whether or not they intend to become grandfathered suppliers.
Under the proposed revision, noncontract providers who choose to employ the grandfathering provision must provide written notification to CMS 30 business days before the start of the competitive bidding program and must give written notice to beneficiaries at the same time. If a beneficiary does not accept the provider's offer to be a grandfathered supplier, the proposed rule says, the provider must provide two additional notifications — 10 days prior and two days prior — to the beneficiary before picking up the equipment.
Ten business days before picking up equipment, noncontract providers who are not using the grandfather mechanism must notify beneficiaries via a phone call. Then, two days prior to picking up the equipment, providers must again notify the beneficiaries by phone.
"The thing that strikes me as onerous is the notification provision," Bachenheimer said. "It seems unduly burdensome from the supplier's perspective that CMS is requiring three separate notifications. You have to maintain documentation and confirmation that the beneficiary has received [the notifications]. So, if you're a noncontract supplier and choose not to grandfather … you are essentially saying that three times."
Bachenheimer noted that HME stakeholders have the opportunity to comment on the revision. See the full text of the proposed physician fee schedule rule for instructions on comments, which will be accepted until Aug. 31.
"This is a proposed rule," Bachenheimer pointed out. "If people vehemently object, who knows? They may change it."
View a fact sheet on the proposed grandfathering provisions.