Bid lawsuits: ‘A slim chance is a slim chance’

Friday, August 23, 2013

WASHINGTON – Two legal efforts to stop competitive bidding are still in play but face significant obstacles, say industry stakeholders.

AAHomecare last week learned that the Department of Health and Human Services (HHS) has filed a motion to dismiss the association’s lawsuit, which argues that CMS violated the rules governing the bid program by awarding contracts to providers without proper state and local licenses.

“Our executive committee is looking at this, and we have to decide what our resources allow us to do and what our next step is,” said Tyler Wilson, outgoing president and CEO of AAHomecare. “We feel strongly about the correctness of our position, but justice doesn’t always prevail in the courts.”

If it choses to move forward, AAHomecare, which filed the lawsuit in June with Havre de Grace, Md.-based Home Mediservice, must file a response in September.

Another stakeholder, Shoreview, Minn.-based Key Medical Supply, has decided to move forward with its lawsuit, which argues that the bid program will cripple its business and jeopardize patient access. It filed an appeal in June and the Midwest Association for Medical Equipment Services (MAMES) filed an amicus brief in August.

“One of the things the judge said as part of his ruling was, ‘How come there aren’t hundreds of companies involved?” said Rose Schafhauser, executive director of MAMES. “This was the perfect opportunity to show the court that we have four bid areas in our territory and this is impacting our entire membership.”

Both lawsuits have faced this big obstacle: To date, the courts have agreed with the government that they don’t have jurisdiction to rule on the bid program.

“I’m not sure there’s a reason to think the judicial bar will be any weaker going forward,” said Dan Leyton, a partner at Kravitz Talamo & Leyton, which has been involved in past lawsuits. “But maybe there’s room for some creative lawyering.”

So what’s pushing stakeholders forward? In the Key Medical Supply case, at least, the judge granted the government’s request for dismissal, but he also strongly criticized* HHS and the bid program.

“We need to show we’re doing everything in our power to stop this,” Schafhauser said. “Even if there’s a slim chance, there’s a slim chance.”


Federal Court Jurisdiction or "Lack-Of" was already decided with The Nichole Medical Case and I would be surprised if The Federal Courts en masse don't cite the case in ANY or ALL of the final Court rulings!! I also asked for the industry to group together and argue support for the case. "strength in numbers" Is what I said but my appeal for support was dismissed by the same entities now trying to unring the bell!! I also tried to convince the industry of the connection between The Nichole Medical Case and the competitive bidding issue was, that being the actions of CMS and it's contractors were an integral part of both. Go back and review any or all my comments from the articles written. Sadly, I tried unsuccessfully to get everyone to realize this outcome was at stake with The Third Circuit Court. It is ALL in their final "Decision"!!

Footnote: if any of the lawyers involved in any of the above procedings are NOT familiar with The Nichole Medical Case may I strongly suggest they read up on it. It is quite clear that ALL Federal Courts "lack jurisdiction" for ALL/ANY civil complaints involving CMS. All Jurisdiction involving CMS is in The ALJ Venues. The irony is The ALJ's lack jurisdiction outside other than determination of benefits. Basically, currently NO Courts have any Congressional designated jurisdiction for Civil Procedings arising under The Medicare Act! Remember Retired Supreme Court Justice Sandra Day O'Connor is a signature on this Decision. I don't believe any Federal Judge in any of The Federal District or Circuit Courts are going to contradict what she has Opinioned. Since I was NOT able to get enough support for a Supreme Court Appeal this ruling is the current weapon of choice for Federal Court dismissing cases against CMS.)