CMS on NCB: 'The law is what it is'

Sunday, February 22, 2009

BALTIMORE - During last week's Open Door Forum, a stakeholder asked CMS officials whether they would consider re-issuing a proposed rule on national competitive bidding, giving the industry time to help improve the program. Their answer: No.

Eric Sokol of The Power Mobility Coalition asked CMS officials: "Is there any possibility that (the Jan. 16 interim final rule) can be rescinded so we can get some meaningful notice and comments?"

CMS's Joel Kaiser told Sokol that the agency's hands were tied. The Medicare Improvements for Patients and Providers Act, he said, requires CMS to make a few specific changes to the competitive bidding program then re-launch it in 2009.

"There really are no ifs, ands or buts on how we implement these provisions," Kaiser said. "The law is what it is."

The industry had hoped, when CMS pushed back the effective date of the final rule from Feb. 17 to April 18, that the agency would circle back and work with stakeholders to improve the program.

Sokol reiterated that stakeholders seek an opportunity to share with CMS lessons learned from last year's failed Round 1.

"For example," he said, "there's a concern that some providers could be gaming the system by bidding at a point that they were just bidding to get the contract. Those types of things could have been brought out, and possibly rectified, in a new rule."

Kaiser: "I would note that the low-ball bidding has been dealt with through rulemaking already. I don't think that's a good example."

Sokol: "I guess I'll have to work on coming up with new ones."

Kaiser: "OK."

Laughing ensued.

Also at the forum, CMS officials stated that they don't yet have a specific timeline for rolling out Round 1.2 of competitive bidding.

"There has been a change in administration, and we're going through that transition process," Kaiser said. "Once that transition process is on its way, and we have a timeline and decisions on re-bidding, we'll be announcing that."

CMS will accept comments on the final rule until March 17.