ATLANTA — HME advocates took advantage of the congressional recess last week to push for more cosponsors of H.R. 3790 to repeal competitive bidding.
As of Friday, the bill had 242 official cosponsors, but "there is a good chance that we will surpass the 250 mark by [this] week when we add all the cosponsors who [signed on] during the recess period," said Seth Johnson, vice president for government affairs for Exeter, Pa.-based Pride Mobility Products.
"That's over half of the U.S. representatives saying they want to get rid of the bid program," said Cara Bachenheimer, senior vice president of government relations for Invacare, Elyria, Ohio. "There is no question that the more representatives that sign on, the easier it will be to get this bill through the House. That's because the House leadership looks at the number and realizes that this bill has a majority [and] is therefore not going to be controversial when it is attached to another legislative vehicle."
The industry is also "making some strides" in getting a companion bill in the Senate, said John Gallagher, vice president of government relations for Waterloo, Iowa-based VGM, adding that industry leaders met during the recess with senators about championing such a bill.
"Our main obstacle remains the chairman of the Senate Finance Committee and the senior Democrats on that committee. That being said, remember [that] two years ago we gained tremendous momentum in the House first, and that forced the issue in the Senate," Bachenheimer said, referring to the congressional action that delayed Round 1.
Gallagher said the biggest issue with stopping competitive bidding is paying for its elimination. The environment in Washington demands that new legislation pay for itself and not add to the nation's debt load. Since part of the impetus for competitive bidding is to cut Medicare costs, the industry must make up the projected Medicare savings if the project is eliminated.
"We will have a pay-for. We just don't know what that will be," Gallagher said.
Meanwhile, the clock is ticking toward implementation of the new Round 1 in January 2011. CMS has said it would release bid prices sometime this month — though Johnson said he has heard that "those could slip into July" — and contract winners in September.
According to Gallagher, that timing "is about perfect." The industry's best hope for getting H.R. 3790 through Congress now lies in getting it attached to a tax-extender bill or a Medicare-issue bill, both of which are expected to come up for votes in September, he said. And, he believes, it could be easier to gain support for H.R. 3790 once Round 1 prices are revealed.
"The pricing will help us to convey to members of Congress the true facts behind these suicide bids," Gallagher said." When they release the suicide bid rates at the end of this month, we can go to Congress, the Senate Finance Committee and the Ways and Means Committee and say these unsustainable bids are going to be out there."
The announcement of winners should help the industry's case even more, Bachenheimer added. "Until we understand who the winners and losers are … we likely won't have great data upon which to tell our story," she said.
Johnson agreed. "When the contract award winners, if you want to call them that, are released in September, that's when we will really know more about how CMS is rolling out this competitive bidding program and a little more about how they evaluated the bids — who won, who lost and whether there were significant disqualifications," he said.
September, said Gallagher, "should be the proverbial time when the lid is off the kettle and people are screaming mad because they are out of business. They didn't win the bid. Now you've got real folks saying, 'I've got 20 employees and I've got to let them go.' And this is critical timing — it's right before the elections."
Court Denies CMS Request
Meanwhile, the industry got a bit of good news last week. A District of Columbia court ruling opened the door to advancing the Texas Alliance for Home Care Services' lawsuit against CMS over its refusal to release the financial standards for bidding. The suit asks for a stay of the program until CMS provides the methodology on how financial stability was determined during bidder selection.
Citing the Administrative Protection Act, CMS had asked that the court reconsider its opinion that the agency's actions were reviewable. The court denied the request.
"We clearly have a better advantage than we had to begin with because we have won the initial challenge," said Barry Johnson, president of TAHCS. "We think this is a real shot in the arm for us. We firmly believe we will achieve standing in the court and move forward to obtain a stay of competitive bidding.
"If we lose H.R. 3790, we still have a way of staying competitive bidding," he added.
But because the wheels of justice grind slowly, "I think we're going to get 3790 before the lawsuit," Barry Johnson said. "H.R. 3790 keeps chugging along, and we'll keep working on that. I think we will win."
Bachenheimer said she believes the industry has "a really good shot" at getting the bill through the House this year. But the industry can't be complacent. "We all need to keep up the great grassroots work because our job is not yet over," she said.
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