ATLANTA--Between contacting CMS and Congress, industry organizations have had their hands full attempting to minimize the impact of competitive bidding on the nation's providers.
That includes potential lawsuits contesting the program from the American Association for Homecare, VGM, the National Association of Independent Medical Equipment Suppliers and others. To outline each organization's game plan, here is what HomeCare Monday has learned.
--AAHomecare has begun talks with Washington, D.C., law firm Sidley Austin on what legal recourse the industry may have in the face of competitive bidding. In a notice last week, the association said it would “coordinate legal initiatives to prevent duplication of efforts.”
Michael Reinemer, vice president of communications and policy for AAHomecare, said the organization has begun talks with other industry groups to promote “efficiency” in combating competitive bidding. “We have to ask ourselves 'What can actually be done?'" Reinemer said. “Let's be on the same page.”
AAHomecare President and CEO Tyler Wilson said the association has logged more than 160 complaints about bid disqualification and other problems in round one, and the organization is currently working to address the issues through diplomacy.
“I think it's best to first take a step back and say that our choice would be to work through these issues in a cooperative fashion with CMS. That may mean going through Congress,” he said. “I think it's premature to start talking about other legal options until we see what all of the claims are.”
In the interim, Wilson said he has begun to “reach out” to member services organizations VGM and The MED Group to “try to coordinate to make sure there aren't duplicate efforts going on out there.” He also warned that legal action will be “very expensive,” but said Sidley Austin is examining the industry's options should the issues not be resolved through communication.
--"I appreciate, applaud and support AAHomecare’s efforts in being proactive in hiring a Washington law firm," said industry attorney Jeff Baird, chairman of the Health Care Group at Brown & Fortunato. "[AAHomecare] certainly wants to resolve these issues through negotiations, but by having a law firm ready to go in Washington, D.C., I think that’s a good idea.”
For his part, Baird said the Amarillo, Texas, firm has been contacted by a number of HME owners who feel they were unfairly disqualified from the bidding process.
“We have instructed them to work with the CBIC and with their elected representatives. We have also instructed them to support AAHomecare in its attempts to work out the problems with CMS and Congress,” Baird said. “However, our clients are ready to go to court if the political/administrative efforts fail.
“On our clients' behalf, we have researched whether the statutory prohibition against judicial relief prevents HME suppliers from going to court,” Baird said. “We have completed our research. We believe that judicial preclusion is not so broad as to prohibit companies from seeking judicial relief from blatant mistakes made by the CBIC.”
--Waterloo, Iowa-based VGM has also sought legal counsel in Washington, D.C., from Akin & Gump.
“We are working on several fronts to combat competitive bidding round one and to delay implementation of round two, mainly focused on legislative remedies in the short term while still looking at the legal action as the long-term effort,” said John Gallagher, VGM vice president of government relations.
Akin & Gump is reviewing the questions of constitutional grounds for litigation based on due process and regulatory burden “to name just a few,” Gallagher said.
But he said VGM would also support other industry efforts.
“We fully support the efforts of many entities in the industry to launch their own legal remedies. The more suits that are launched in different courts, the better chance we have to have a federal judge sit up and take notice,” Gallagher said. “The question remains what resources are available and what time limitation are we under--we are told that courts look to a 60-day window--for litigation.”
--President and CEO Wayne Stanfield of NAIMES said the association is working in conjunction with VGM and its Last Chance for Patient Choice in talks with Akin & Gump.
A Thursday message detailed the group's intentions to raise money for legal costs should a court battle become necessary. For its “DME Legal Defense Fund,” NAIMES seeks $1,000 pledges from suppliers in all 80 MSAs included in competitive bidding that will be used “for legal expenses related to litigation in this case.”
"NAIMES is aware of a number of legal initiatives being pursued and intends to use the funds gathered to support the paths it sees that have the best chance of success. Taking such steps will require that a substantial amount of money be raised," the message said. Money contributed will be offered for return to donors, pro rata, if not used, the organization said.
The association also continues to focus on a grassroots solution to the competitive bidding problems, Stanfield said. "We have the power to delay this ill-conceived process through Congress, but it will require more suppliers to be involved and politically active.”
No matter what paths the various industry organizations choose, NAIMES Chairman Wayne Sale, president of Health First in Richmond, Va., said the overall fight is for “the greater good.”
“There's a battle to be fought and a battle to be won,” he said.