Rule resurrects competitive bidding

Sunday, January 18, 2009

WASHINGTON - CMS released an interim final rule on national competitive bidding Jan. 16 that does little to improve the controversial program, industry stakeholders say.

"There's nothing in the rule that gives us reason to believe that the revised Round 1 of competitive bidding will be any different than the initial Round 1," said Seth Johnson, vice president of government affairs for Pride Mobility Products.

The rule, which goes into effect Feb. 16, sets the stage for CMS to re-implement the program, possibly this summer. The agency will accept comments until March 17.  

The rule implements the provisions outlined in the Medicare Improvements for Patients and Providers Act (MIPPA)--a bill passed in July 2008 that delayed competitive bidding--but nothing else, industry stakeholders say. Those provisions include requiring CMS to notify providers of missing financial documentation.

That's not enough, industry stakeholders say.

"CMS may be within compliance of the law, but they're outside the spirit of everything that was voiced throughout the middle of last year (when competitive bidding was delayed)" said Tyler Wilson, president of AAHomecare.

There are still numerous procedural and structural flaws with the program, not to mention continued debate about whether home medical equipment should be competitively bid at all, industry stakeholders say.

With a rule now on the books, providers need to submit comments--sooner rather than later, since the rule goes into effect before the comment period ends--and double back with legislators who championed the industry's cause last year, industry stakeholders say.

"Whether they're Republicans or Democrats, this gives them a legitimate beef with CMS," said Cara Bachenheimer, senior vice president of government relations for Invacare. "CMS needs to re-look at this program."

Had CMS been working in good faith over the last couple of months, industry stakeholders say, the agency would have held a public meeting to gather input, met with the Program Advisory and Oversight Committee (PAOC), issued a proposed rule, and then published a final rule.

"We expected CMS, with guidance from Congress and MIPPA, to step up and address a number of flaws," Wilson said. "Instead, the agency and the outgoing administration rushed to get this rule out in the 11th hour."

Notables from the rule:

*    CMS has formed a new PAOC. Among the 17 members: AAHomecare's Walt Gorski and Sunrise Medical's Rita Hostak.

*    As part of Round 1.2, CMS plans to rebid the same product categories, except complex power mobility and negative pressure wound therapy devices.

*    It also plans to include the same competitive bidding areas, except San Juan, Puerto Rico.

*    CMS will require providers to submit financial documentation for the most recent one-year period.

*    Providers will have 10 business days to submit missing financial documents.

*    Providers must disclose subcontracting relationships within 10 days of forming those relationships.

*    CMS will consider alternatives to competitively bidding diabetic supplies due to concerns about differing payment rates based on mode of delivery.