With the July 1, 2008, implementation date for round one of DME competitive bidding looming, the industry is working through every option to suspend the first round and delay the second.
Make no mistake: We are all in round one since it will have extensive implications for the procedures used in the 70 round two bidding areas. Also, these initial rounds lay the foundation for applying bid rates in non-bid areas as early as 2009. And if you think a national mail-order program would only apply to diabetes, think again. The Medicare mail-order supplies program could be much broader.
It's important for everyone not only to be aware but also to be vocal about the bid program problems and urge Congress to suspend round one until the numerous errors and implementation problems can be addressed and resolved.
The home care community has been working hard on many fronts.
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Legislative lobbying: A growing number in Congress have sent letters to their leadership on key committees, to Department of Health and Human Services Secretary Leavitt or to acting CMS Administrator Kerry Weems raising concerns about round one. Thanks to many efforts, there is a growing, bipartisan effort in Congress to delay the bidding program.
AAHomecare hosted a May 21 fly-in to put boots on the ground on Capitol Hill and make sure the voice of HME providers is loud and clear. Legislative pressure from Congress focused on CMS leadership is our best hope for immediate action. In April letters to the leadership of key House and Senate committees, we stated:
“AAHomecare requests that you exhort CMS to delay round one of the DME competitive bidding for six months or however long CMS needs to correct the identified problems because round one has been fraught with procedural and operational flaws that threaten the integrity of the entire competitive bidding program.
“The problems include, among others: 1) Competitive Bidding Implementation Contractor's (CBIC) inappropriate rejection of qualified bids due to misplaced or overlooked documentation that was properly and timely submitted by suppliers; 2) inappropriate disqualification of bids due to purported ‘financial stability’ reasons, which neither CBIC nor CMS have ever explained during or after the bidding process; and 3) an apparently arbitrary and capricious process regarding how the CBIC or CMS used providers' self-reported capacity to determine how many winning providers were needed for each market.”
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Legal options. At our request, Sidley Austin LLP, a business law firm, is also exploring avenues of potential litigation. Two approaches have been reviewed: a constitutional challenge to round one and a statutory challenge to round two. The statutory challenge would have the greatest chance of moving forward.
The complaint would request that round two be stopped because the HHS Secretary failed to specify “applicable financial standards” as required by the statute. Legal action would allege that the Secretary's failure to comply with the statute has resulted in a lack of integrity or quality assurance regarding the bidding process.
In addition to requiring that the Secretary specify financial standards that take into account the needs of small providers, the complaint would ask the court to order that HHS provide notice to any disqualified bidder, giving a reasonable time for the bidder to show that it properly submitted everything and should be considered as an eligible supplier before awards are made.
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Regulatory work: AAHomecare continues to work with CMS to share information and request explanations.
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Media relations: Efforts to get the industry's story heard have had some success, both in Washington, D.C., and in round one areas. The press articles describing the plight of both the home care provider and the patient have helped to trigger positive actions by both CMS and by at least one member of Congress in Florida.
All efforts are likely to continue for some time. We hope that everyone will truly step to the challenge in terms of advocating for action in Congress.
Tyler J. Wilson is president and CEO of the American Association for Homecare, Alexandria, Va. He may be reached by e-mail at tylerw@aahomecare.org. For more information about the association, visit www.aahomecare.org.
