In 2003, Tennessee became the first state to mandate certification for HME dealers when fitting individuals in wheelchairs for long-term use. Now known as “consumer protection” legislation, the law is a good beginning, according to Darren Jernigan, director of government affairs for Lebanon, Tenn.-based Permobil, which was instrumental in drafting the legislation and hopes to encourage other states to follow Tennessee's lead.
While provisions in the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 make accreditation mandatory for providers reimbursed by Medicare, state laws would require certification for individuals and would apply to all providers, whether they do business with the government or not. “Requiring that a consumer who needs a wheelchair for long-term use be seen by a person with credentials in seating and positioning is a first step,” Jernigan says, adding that although most states are suffering from budget problems, such laws could save money that currently is being spent on unnecessary surgical procedures and unscrupulous dealers.
HomeCare spoke with Jernigan about the Tennessee law, pending certification bills in other states and the prospects for such legislation to be realized at the federal level.
HC: Who initiated the legislation in Tennessee?
Jernigan: The first meeting was a [joint effort] between the Vanderbilt University Wheelchair Clinic and Permobil. From there, the process grew like a snowball, [eventually] involving many.
HC: Why did Permobil get involved?
Jernigan: One of my objectives when I was hired at Permobil was to professionalize the industry. Certification is a way to accomplish this goal, and attempting to reach it through state legislatures is the best chance to achieve [mandatory certification]. The cliché “act of Congress” is a cliché for a reason. You have to start at the state level.
HC: What does the Tennessee certification law legislate?
Jernigan: In its simplest form, the [law] requires suppliers who provide power wheelchairs to be certified to do so and to have a certified individual on staff. It also eliminates drop-shipping and Internet sales [of] power wheelchairs.
HC: Who does it affect?
Jernigan: If a [user has a prescription for a chair] and will be in the chair long-term — six months or more — then he or she must be seen by a certified supplier. The Tennessee legislation is “K”-code [driven], so the two factors together determine who the language in the law actually covers.
HC: Why hasn't legislation of this sort come about before now?
Jernigan: Good question. It has been discussed for many years. However, like many projects, it takes an individual or organization with the time, resources and the caring to get it done.
HC: What other states are trying to pass similar legislation?
Jernigan: Alabama and Georgia have certification language in their Medicaid policies, [and] California, Colorado, Delaware, Florida, Illinois, Maryland, Minnesota, Missouri and Virginia have bills being introduced in their 2004 [legislative] sessions. Texas … is planning introduction of its bill in the spring of 2005.
HC: What are some of these other states doing that is different from what was done in Tennessee?
Jernigan: Tennessee is different from every other state passing similar legislation. While Tennessee was first in the certification arena, its law will soon be out-of-date because other states have built on what Tennessee has done … For instance, Tennessee has the only [legislation] that is “K”-code-driven, while [the other states' bills] are diagnosis-driven.
All other states' [bills include] grace periods for when a certified individual ceases to be employed by a supplier. We simply didn't think about that in Tennessee. {Some] definitions are different or have been redefined, [and] other language [calls for the] involvement of a therapist during the evaluation in addition to a qualified rehabilitation professional on staff. The changes are good.
HC: What is your involvement with the other states' work?
Jernigan: I am involved mainly as a facilitator … [Permobil was] heavily involved in Tennessee because [we knew that] if we couldn't get the legislation passed in our own backyard, then it would be difficult in other places. We wanted to create a [model] for other states to follow, and it has seemed to work.
HC: Who is spearheading the legislation in other states?
Jernigan: A dealer or therapist or two will step forward in the first meetings and [volunteer to act] as an advocate for the process. Someone in the group usually knows someone in state government, while another person will sponsor the room for the next meeting. In one state, two dealers who didn't like one another and hadn't spoken to each other in years [came together to work] on this project.
HC: What role do NRRTS (National Registry of Rehabilitation Technology Suppliers) and RESNA (Rehabilitation Engineering and Assistive Technology Society of North America) play?
Jernigan: RESNA is the key player in all bills [and was] in the law in Tennessee. The bottom line is that by a certain time frame, the certified individual on staff [must] be certified by RESNA. However, during the period leading up to RESNA certification, a qualified rehab professional would simply have to meet the requirements of NRRTS but not actually be a NRRTS member.
HC: Have the roles played by NRRTS and RESNA in this legislation created any obstacles for providers?
Jernigan: RESNA is recognized as the credentialing body for the [rehab] industry. NRRTS' [role is a bit different as it] is a registry and not a credentialing body. Mandating NRRTS language in the legislation has caused some organizations to be against the bill. Certain organizations are not allowed into NRRTS, and mandating NRRTS membership through legislation, they feel, would prevent their companies from doing business in the state due to their lack of ability to join. That is why most [of the bills include] NRRTS requirements without actually being a member of NRRTS.
HC: At what point do you anticipate that mandatory certification legislation will get to the federal level?
Jernigan: I would love to see a bill introduced as early as January 2005. As long as no national organizations [oppose] the bill, and if six or seven states already have certification legislation, there should be no problem getting the bill passed. It is not a terribly controversial bill … so it will not be on many radar screens on the Hill.
HC: How might consumer-protection legislation look different as a federal policy?
Jernigan: The core parts of the federal bill would be very similar. We have tried to keep the states' [requirements] as close as possible precisely for the reason of getting it through Congress. I imagine the federal legislative requirements would be minimal, [with each state settling for itself] the subtle differences that need tweaking.
HC: Is there anyone you would commend for doing a particularly great job at getting this legislation in front of lawmakers?
Jernigan: There are too many to mention. To name a few: Gary Gilberti with Chesapeake Rehab in Maryland really took off with the Maryland legislation and ran with it to find a sponsor, contact interested groups and mobilize them to get the bill through. The Colorado Association of Medical Equipment Suppliers is already working with a lobbying firm to support that state's bill. Others are Bruce Bayes with Custom Mobility in Florida and Mike Osborn with Home Medical Supply in Missouri. I'd better stop now.
Darren Jernigan has academic degrees in public relations and political science. He has worked at the State Department and the Veterans' Affairs Administration in Washington, D.C., and as a staff member for former Sen. Bob Clement, D.-Tenn. In 2001, Jernigan was elected a member of the Davidson County, Tenn., Democratic Executive Committee. He may be contacted by e-mail at darren.j@permobilus.com.
