NCB strategy: 'Let's be aggressive, let's be proactive'

Sunday, May 6, 2007

ARLINGTON, Va. - Industry efforts to soften or even eliminate national competitive bidding may succeed, but providers should plan as "if it's going to be here forever," industry attorney Jeff Baird said during a recent AAHomecare teleconference.

"Let's be aggressive, let's be proactive, let's adjust," Baird told listeners. "Having said that, if we are able to modify or get rid of competitive bidding through legislative or court means or political means, than life is good."

During the two-hour call-in session April 19, Baird gave a comprehensive overview of the 401-page final rule, which he and other healthcare attorneys at Brown & Fortunato in Amarillo, Texas, boiled down to a manageable 36 pages. Among the many topics Baird discussed with the two dozen listeners: the timeline for bidding and picking the winners; who's eligible to bid; how CMS will evaluate the bids and award contracts; the provision that at least 30% of successful bidders be defined as "small providers," those with gross revenues of $3.5 million or less; and payment under competitive bidding.

The daunting nature of the final plan has left many providers "with a deer-in-the-headlights" gaze, Baird acknowledged. As apparent proof, only two providers asked questions following the presentation. That didn't surprise Baird.

"It would be like someone coming in and taking a hand grenade to the law profession and saying black is white and white is black," he said. "It would be a challenge and, at least for a time, I would be frozen."

The two questions that listeners asked were:

Q. Doctors are exempt from having to submit a bid to provide certain equipment to their patients. Can a DME who lost the bid work with the doctor to provide this equipment?
A. "The short answer is I think so," Baird said. He went on to explain that the OIG issued a special bulletin in April 2003 that frowned on turnkey arrangements where a provider, in exchange for referrals, does all the work for a doctor who does nothing but pocket the cash. That's a kickback. For an arrangement like this to pass OIG scrutiny, the provider and doctor must share financial risk and operational duties, Baird said.

Q. If a patient has not paid his 20% co-payment, must the provider transfer title of oxygen equipment to him once the 36-month cap ends?
A. "Yes, you do," Baird said. "But I think it is wrong. At least for right now, CMS has taken the position that even if the patient has not paid the co-payment, you have to transfer title."