NCB lawsuits: Door left open

WASHINGTON - Now that national competitive bidding has been delayed, lawyers in a Cleveland lawsuit seeking to permanently halt the program filed a motion last week to dismiss the case without prejudice. That leaves the door open for them to file again in the future. The suit was filed in December and paid for by The VGM Group's Last Chance for Patient Choice. The member services organization would not hesitate to bring a future suit against CMS, said Jim Walsh, president of VGM Management. "It is highly unlikely that any amount of tinkering (with the program) would be acceptable to the industry," he said. "If we see that they are doing the same thing again, we will probably seek both legislative and judicial relief." Also dismissed without prejudice on July 25 was a suit filed by AAHomecare. The association had filed suit in June in Washington, D.C., citing the government's failure to outline proper financial standards and challenging its definition of a small business. The Medicare Improvements for Patients and Providers Act, the bill that delays competitive bidding, basically rendered AAHomecare's claims moot, spurring lawyers to seek dismissal without prejudice, said Tyler Wilson, the association's president and CEO. "Those issues were never resolved," said Wilson. "If, in retooling competitive bidding, CMS fails to adequately address those issues, we could refile." Whether the final remaining lawsuit, also financed by Last Chance and filed in Dallas, would continue was undecided at press time. "If we keep it going, we will ask for a permanent injunction," said Jeff Baird, an attorney with Amarillo, Texas-based Brown & Fortunato. "We would back off that in the future, if NCB is eliminated from a legislative standpoint. Or, we may dismiss without prejudice and work on converting the NCB delay into an elimination."