In 1773, when his government passed the Tea Act reinforcing an unpopular tax and establishing a monopoly on imported tea, Samuel Adams and his cohorts took to the streets, advocating a boycott of the English East India Company.
When English ships docked at Boston Harbor that December, the dissenters held protest meetings that drew thousands and crowded the thoroughfares of the city.
And when the government continued to deny the cries of its people, Adams and a group of some 50 men took to the ships, emptying 342 chests of Darjeeling tea into Boston Harbor.
Adams' point?
“It does not require a majority to prevail, but rather an irate, tireless minority keen to set brush fires in people's minds.”
For North Miami Beach home medical equipment provider Rob Brant, president and CEO of City Medical Services, that “brush fire” came in 2001 in the form of an impassioned speech by Joan Cross, co-owner of Bradenton, Fla.-based C&C Homecare, at Medtrade.
Cross, then president of the Florida Association of Medical Equipment Suppliers, was speaking out against a Medicare competitive bidding demonstration project engineered by the Centers for Medicare and Medicaid Services in Florida's Polk County.
“When I went to Medtrade and I heard Joan Cross speak … I realized that this was a real threat to my business,” Brant recalls.
“She's the one who lit a fire under me. She encouraged me to join the board of FAMES,” he continues. “Joan was the one to show me that just being a member was not enough to be ‘active.’ It's important to bring your ideas to the association's leaders and say, ‘Hey! Has anyone looked at this issue or that issue?’”
Since that fateful Medtrade encounter, Brant and his business partner and father-in-law, Ronald Bibace, have made activism and education a priority within City Medical Services. They've joined industry groups, including FAMES, the American Association for Homecare and Waterloo, Iowa-based VGM Group.
They've required City Medical's seven employees to take at least 24 hours of continuing education annually, and, most recently, they've founded industry advocacy group the Accredited Medical Equipment Providers of America.
The Tea Act
Always a forward thinker, Brant founded oxygen-focused City Medical in June 1997 after working for a few years for another provider. By 2000, the company had taken the first step toward becoming accredited by The Joint Commission (formerly JCAHO).
Then, along came the Medicare Modernization Act, which brought with it what could be considered the Tea Act of the HME industry: competitive bidding.
Brant, whose company is 80 percent Medicare business, readied himself for a fight against the project. His plan of attack was three-pronged:
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Cooperate with industry organizations to present a united front;
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Prepare a fair, complete bid; and
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While preparing the bid, continue to rally support for the Tanner-Hobson Bill, H.R. 1845, in hopes that its “any willing provider” clause would keep providers in the Medicare program.
“It was a foregone conclusion in my mind that Miami would be in round one,” Brant recalls, noting he warned his employees early to begin preparing. “[The city is] eleventh in size, but the third largest in Medicare DMEPOS spending. And we have extensive fraud.”
Sure enough, when the final MSAs were released in 2006, Miami was on the list. Brant was in Boca Raton, Fla., for a VGM/FAMES conference on the ins-and-outs of the program when he learned of the provision in the competitive bidding plan that called for 30 percent of the bid contracts to go to small providers. The provision immediately raised red flags.
There are, Brant says, 500 small oxygen providers in the Miami area. What if there were only 10 bid winners in the area? Did that mean that only three out of the 500 small providers would win contracts? Brant and Bibace contacted the Small Business Administration in May 2007.
“Ron contacted Nick Owen, who is the federal ombudsman for the SBA, because he believed it was unfair that there was not enough protection for small businesses under the final rule,” Brant says. “From there, we formed an organization called DME OPEN to share information and encourage people to send a complaint to the SBA. This worked well.”
Brant argued that the effects of the competitive bidding contracting process would be devastating on many levels.
“It's a chain reaction that won't affect only small DME providers,” Brant said in his complaint. “If those companies downsize or close, it will hurt their landlords, their billing companies, their software companies and the mom-and-pop [oxygen] repair companies and the small manufacturers they deal with … and all of these people could be going to collect unemployment.”
The company's efforts, which included contacting industry groups to spread the word, prompted the SBA to hold hearings on the matter in December 2007.
“Unfortunately, the only thing to come out of the hearings was a suggestion to CMS to delay competitive bidding,” Brant says.
While the SBA considered the complaints of small providers — and CMS ignored them — Brant, who recognized that to stay in business he would have to win contracts, focused on submitting bids for oxygen, continuous positive airway pressure devices, hospital beds, enteral feeding, walkers and support surfaces. All the while, he promoted the Tanner-Hobson Bill in the hopes that none of his bids would be necessary.
“Basically I worked with an attorney in Miami and bid in a network with another company. Together we do about 10 percent of the CPAP in the Miami MSA,” says Brant. “Together, we got an attorney in the office of Anthony Vitale, and we decided to put the bid in and make sure that everything was perfect.”
But despite his legal and political efforts, Brant saw he was losing battles. DME OPEN and the SBA, originally successful battle strategies, were failing to make the headway needed to stop competitive bidding, and Tanner-Hobson was also losing steam.
Ships Arrive in the Harbor
Brant received the notification on Good Friday in 2007: He was disqualified.
Shocked, Brant took his concerns to CMS, which said he was missing documentation. They would not reconsider his bid.
Faced with no recourse, Brant chose to stand and fight, redoubling his legal and political efforts.
“Immediately when I found out I was disqualified, I contacted … everyone from the Washington [AAHomecare Fly-In] conference. I wanted to know if it was just me. But it wasn't just me. And I knew that obviously there was a problem if all of these people were getting disqualified,” Brant says.
Industry groups were collecting complaints from across the country from providers who believed their bids had been unfairly disqualified. Brant, realizing that he and other small providers risked losing their businesses if competitive bidding prevailed, again took an active role.
“On Tuesday, March 25 [2007], we had a meeting to speak with people who had had unfortunate bid outcomes. Over 100 people showed up. That's when we decided to form an association to combat competitive bidding. We knew there would probably be lawsuits and legal action … and that's how AMEPA was formed,” he says.
Through AMEPA, Brant began garnering media attention, holding meetings, recruiting and reaching out to members of Congress and to Medicare beneficiaries who would be affected by the program. In the process, he learned about other problems with competitive bidding, such as the fact that there were nine bid winners in Florida that did not have the proper licensure to provide oxygen in the state.
He shared the information with AAHomecare and VGM, both of which were also hearing volumes about flaws in the project. Soon, members of Congress were questioning the validity and fairness of the program, and a meeting of the House Small Business Subcommittee was scheduled.
The Boston Tea Party
On June 17, AMEPA held a fly-in to speak with legislators about passing the newly drafted H.R. 6331, the Medicare Improvements for Patients and Providers Act.
But time ran out. On July 1, 2008, despite the unwavering efforts of industry groups and political allies, round one of competitive bidding went into effect. Brant and his company could no longer provide services for Medicare beneficiaries, a crippling blow.
Still, Brant, Bibace and numerous other industry stakeholders continued meeting with members of Congress, pushing the message that the competitive bidding program was critically flawed, would cause the closure of small businesses and would limit access to care for beneficiaries.
While the legislature considered H.R. 6331 — and President Bush threatened a veto if the bill was passed — Brant was doing everything in his power to raise awareness. Through AMEPA, he sent vigilant fax blasts to more than 500 legislators. He met with the Florida delegation and got several of its members on board.
“These faxes included letters from physicians and referral sources that had problems with the bid winners in the first weeks of July. We also sent letters from the Florida Department of Health that nine of the oxygen bid winners in Florida were unlicensed and therefore, could not provide oxygen service,” Brant recalls.
In addition to faxes and meetings, Brant also rallied beneficiaries in the Miami MSA to ensure they were lighting up the phone lines.
“I'd say probably the most effective thing we did was get all of our patients involved,” Brant says. “Over the years, we have been taking very good care of them, so when we told them that they might have to receive care from a business that was not local and perhaps not accredited, they got very upset.”
Swayed by the arguments of HME stakeholders and beneficiaries, Congress overrode the presidential veto of H.R. 6331 on July 15. Like the taxed tea during the Boston Tea Party, the competitive bidding program was tossed overboard — for 18 months, anyway.
It was a decisive victory for the industry, but like other industry stakeholders, Brant knows there is still a battle to be fought — and a war to be won.
Come Jan. 1, 2009, providers nationwide will be taking a 9.5 percent cut on round one bid items. And oxygen providers like Brant will also be facing the hotly debated 36-month oxygen cap, mandated under the Deficit Reduction Act.
“Looking forward to 2009, we really want to work with AAHomecare to provide a proactive approach to that oxygen cap. We don't want what happened with competitive bidding where they came up with a final rule and said, ‘OK, here it is. Deal with it.’ We don't want a situation where we have no recourse and no way to change the rules. We have to get active now,” he says.
“The [9.5 percent] cut is also going to affect us,” he adds, “but not as much as the oxygen cap. A lot of people have been saying they're not sure how they're going to weather 2009. I think a lot of companies are going to start merging with other companies. I think that's what they're going to have to do to survive.”
Winning the Revolution
Despite the odds before the industry, Brant has high hopes for City Medical's future and for the future of HME. The key, he says, is to become politically active.
“Your congressional leaders — these are the people making the rules. It was very frustrating when we went up to Washington [D.C.] in March [for AAHomecare's fly-in] and only had five people show up from the state of Florida, where there were two major MSAs. It was embarrassing,” Brant says.
“I think, really, our long-term goal is to get providers involved in their industry, and make an effort to get the patients involved … [We must] let legislators and the media know that we're really just good guys providing a good service …
“With continued pressure, I do not really think competitive bidding will continue to be an issue. As long as we continue to have our patients educate our legislators, I don't think there is going to be competitive bidding in HME or the medical arena, period,” he says.
Whether or not competitive bidding ramps back up, Brant is poised for the legislative fights ahead. He continues to build AMEPA, which currently claims more than 150 members, the majority located in South Florida. The association also has members from Texas, Tennessee, New York, Ohio and North Carolina.
Through AMEPA, AAHomecare and VGM, Brant plans to help mount an attack against the impending oxygen cap and says he wants to reach out to all factions of health care to present a united front.
“Our first priority is to work with all providers to either extend oxygen reimbursement beyond the 36-month cap, or at least ensure adequate compensation for portable gaseous and liquid oxygen once oxygen [is capped],” he says, noting AMEPA is seeking “adequate reimbursement to provide service and maintenance beyond December.” (At press time, there had been no word from CMS about how payments will be made once the cap begins.)
Brant also envisions a single coalition of all aspects of the health care industry — doctors, hospitals, home health, diagnostic labs, clinical labs and HME — that would help prevent future government cuts.
“The government needs to look at other programs to cut before health care. It is time we worked together as we did to pass 6331 and not cut HME,” Brant says.
To beat competitive bidding, the 9.5 percent cuts, the oxygen cap and any other challenge that threatens the industry, Brant says providers must get involved at the local, state and national levels and operate their businesses with a clear vision and an active plan.
“You really need to plan out what you are going to do in 2009 in order to survive. You have to look at it today. Don't run your operations with blinders on,” he cautions.
“It's important to belong to your national organization to have a voice in what goes on in the industry,” he adds. “You can't just sit on the sidelines and say, ‘Oh, AAHomecare or VGM will do it for us.’ You have to get involved yourself.”
