DALLAS--The industry’s hopes for a judicial delay of national competitive bidding dimmed on Thursday when a Dallas judge refused to grant a temporary restraining order stopping the troubled project, which is set to start tomorrow.
“The court determined that the specific facts presented did not warrant the granting of a TRO,” said Jeffrey S. Baird, chairman of the health care group for Amarillo, Texas-based Brown & Fortunato. The firm sought the hearing in a lawsuit filed against Michael O. Leavitt, Department of Health and Human Services secretary, and Kerry N. Weems, CMS acting administrator, on June 11.
The suit, filed on behalf of five HME providers and two beneficiaries, was funded by Waterloo, Iowa-based VGM Group’s Last Chance for Patient Choice, an entity formed to fight competitive bidding.
“Depending on what happens in the other lawsuits, B&F may request a hearing on a request for a preliminary injunction, at which time other evidence and live testimony would be presented, and additional plaintiffs may be added,” said Baird. “Such a hearing would likely be held sometime in July.”
The lawsuit was one of five filed in an effort to delay competitive bidding.
On June 19, a District of Columbia district court judge dismissed a suit brought by two small North Carolina HME providers alleging that the HHS secretary singled out mail-order diabetic supplies for competitive bidding based on mode of delivery.
The judge ruled that because storefront and mail-order providers incur different costs and their access to geographical markets is not the same, consideration of the delivery method “is not an ancillary policy"; instead, the judge ruled, “it is encompassed in the very act of identifying and selecting items and services.”
On June 16, Miami law firms de la O, Marko, Magolnick & Leyton and Kravitz and Talamo filed a lawsuit seeking a preliminary injunction against competitive bidding on behalf of the All Florida Network, a group of HME providers that claimed wrongful disqualification from the bidding program. Last week, a federal judge dismissed the suit, ruling that the Medicare Modernization Act bars judicial review.
Two other lawsuits against the national bidding program are still awaiting hearings:
--A suit re-filed in mid-May by Cleveland-based Walter & Haverfield amends a complaint initially filed in December with one plaintiff. That suit, also backed by VGM’s Last Chance, now has three additional plaintiffs and also seeks an injunction against the bidding program. “The judge has promised a ruling before July 1,” said attorney Michael J. Jordan.
--On June 19, the American Association for Homecare filed a federal lawsuit through D.C. law firm Sidley Austin seeking an injunction against competitive bidding. On Friday, Michael Reinemer, AAHomecare vice president, communications and policy, said the organization expected to hear about a ruling by today.