New bill aims to change NCB to benefit provides, beneficiaries

Sunday, July 31, 2005

WASHINGTON -- Rep. David Hobson, R-Ohio, made good on his pledge to seek remedy for the most onerous provisions of the MMA. Last Thursday he introduced a bill, H.R. 3559, that would tweak competitive bidding to benefit beneficiaries and small providers.

The legislation, which is also sponsored by Rep. John Tanner, D-Tenn., proposes seven changes that would make competitive bidding easier to digest for beneficiaries and small providers.

But first, the legislation needs to find its legs.

Sara Perkins, a spokesperson for Rep. Hobson, said Friday their primary goal now is getting co-sponsors to sign on to the bill, titled the Medicare Durable Medical Equipment Access Act of 2005. Cara Bachenheimer, vice president of government relations for Invacare, guesses that 200 co-signers will be needed to get the bill successfully paired with a piece of moving legislation. Last year, Hobson's bill, H.R. 4491 got nearly 170 signatures.

No other legislation has been pinpointed as a vehicle for H.R. 3559 at this point, said Perkins.

"If the bill catches fire or gets enough attention, they could also say let's take a look at making some of these changes from an administrative stand point," she added.

During the August recess, AAHomecare and the state associations are encouraging providers to meet with their representatives to discuss the bill and the potential side effects of competitive bidding. Its new small business ad hoc committee is crafting a grassroots tool to serve providers in this task.

"There is still the issue that competitive bidding is very problematic, and really the best thing would be to have it go way, but given the big picture you have to take incremental steps," said Asela Cuervo, an attorney at the Law Office of Asela Cuervo. "This bill is a good way to start fixing some of the bigger problems with competitive bidding and make headway that way."

One of H.R. 3559's biggest changes would allow any qualified provider that submits a bid below the current allowable to participate in business at the winning bid's price. Cuervo said this mirrors any willing provider laws at the state level that prevent managed care organizations from locking out providers who are willing to work at the set payment rate.

"It changes competitive bidding into a process for establishing a new fee schedule that the government says will be based on market forces," said Bachenheimer. "It would no longer be a mechanism to exclude what could be a significant number of providers in the marketplace."

The other provisions of H.R. 3559, all described as beneficiary protections or small supplier protections, would:
Sum Require CMS to implement quality standards at the same time as competitive bidding.
Sum Restore some of the appeal rights and due process protections stripped away by the MMA.
Sum Require CMS to exempt rural areas from competitive bidding.
Sum Require CMS to demonstrate that there is a likelihood of "significant savings," defined as at least 10%, before a product can be selected for competitive bidding.
Sum Subject the Program Oversight and Advisory Committee to the Federal Advisory Committee Act, which would ensure that the public had access to written records of the committee's proceedings.
Sum Require CMS to conduct formal comparability reports before a bid rate is applied to a non-bid area. The MMA gives CMS the ability to apply bid prices to non-bid areas in 2009.

"It's a compromise," said Cuervo. "It's not going to be 100% competitive bidding, as some in Congress want. It's going to protect two constituencies, the beneficiaries by giving them more choice and small businesses who are voters as well."