A Thin Silver Lining

If you have digested CMS' proposed regulation on competitive bidding, I can only assume you had the same reaction I did if you persevered through the entire document. “Maximize potential savings” seems to be the most oft-used phrase throughout; each proposed detail is designed to elicit the lowest possible bid for whatever items end up being included.

Despite the negatives that the proposed rule presents, there is one thin silver lining: the proposal adds fuel to the fire we need to get Congress to pass the Hobson-Tanner “Medicare Durable Medical Equipment Access Act,” or H.R. 3559, the bill pending in the House of Representatives that would require CMS to rationalize many of the competitive bidding implementation issues.

As you write your members of Congress or meet with them to discuss the proposed rule, be sure to explain the following points, and explain how H.R. 3559 would go a long way toward fixing many of its ills.

• CMS has explicitly rejected or ignored many of the recommendations of the Program Advisory and Oversight Committee that was established by Congress to advise CMS on its implementation of the bidding program. If CMS is to reject PAOC recommendations, it needs to provide that explanation as part of the proposed rule.

• For example, the PAOC strongly recommended that the first step in evaluating suppliers and bids is for CMS to determine whether all the suppliers submitting bids are in compliance with all the requirements — Medicare supplier standards, Medicare quality standards (accredited by an approved accreditation organization) and CMS financial standards. CMS does not identify at what point it will conduct this analysis; rather, in the proposed rule preamble, CMS states it would be too burdensome to conduct this analysis on all the suppliers submitting bids.

  If CMS allows bids from suppliers not meeting the standards, then all subsequent steps of calculating pivotal bids, bid amounts, etc., will be fundamentally tainted because those calculations will include bids based on numbers that could not have included complete compliance costs.

• CMS should be required to disclose the specific geographic areas and products that will be selected in the bidding program. Instead, CMS plans not to reveal that critical information until it releases the Request for Bids.