Second competitive bidding lawsuit filed

Sunday, December 16, 2007

WATERLOO, Iowa - VGM Group and Last Chance for Patient Choice continued their judicial fight against national competitive bidding Friday by facilitating the filing of a second lawsuit, this time in Ohio.

VGM issued a press release Friday afternoon announcing the lawsuit. Here is the text of the release:

The action, filed in U.S. District Court for the Northern District of Ohio (Cleveland) Eastern Division, alleges violations of the Regulatory Burden Act in conjunction with rule-making implementing the national competitive bidding program.

This law requires that federal agencies use the least burdensome method in achieving the intent of Congress when enacting rules related to the law passed. There are other related rules which enhance further the protections afforded to defined "small business" entities.

The plaintiff is a small Ohio home medical equipment provider, Premier Medical. Other HMEs may join the suit in the coming days.

That suit is financially supported by Last Chance for Patient Choice, a 527 organization created by VGM Group, Inc., and by donations from interested parties nationwide. The action alleges that CMS, by its own admission, expects that Medicare will stop doing business with thousands of small business HME providers because of its implementation rules, and that the direct result of NCB will be the loss of viability for many small businesses.

"We know this is a difficult and uphill battle for us in the courts, but we feel strongly that NCB is bad legislation and bad public policy. We simply can't let it go unchallenged in the courts," said Mike Mallaro, president of Last Chance for Patient Choice.

"We don't want to end up with a health-care system where government bureaucrats are making the decisions about which medical providers can serve seniors based on low bid. Seniors don't want the low bidder for medical equipment or hip replacement surgery. They want a qualified and compassionate local provider willing to offer high-quality service at a fair price."

VGM and Last Chance also filed a June 12 lawsuit in the Dallas Division of the U.S. District Court for the Northern Division of Texas.

U.S. District Judge Ed Kinkeade recently dismissed that action, noting that "the plaintiffs' claims are not ripe."

"Courts require that cases are 'ripe' so that they will not become involved in a dispute before it has developed enough that it is ready to be resolved," said Jim Walsh, president of VGM Group and its general counsel.

The judge did not provide an explanation for his ruling. The suit contended that the harm to small HME providers and their customers resulting from competitive bidding was so imminent that the case was ready for decision now, even if the Center for Medicare/Medicaid Services (CMS) had not yet awarded bids, according to Walsh.

However, CMS contended that the plaintiffs' claims of harm were still too speculative, and the U.S. District Court agreed.

"We will continue to fight this government effort to create a two-tier health-care system-one for those who can afford to pay, and one for Medicare beneficiaries," Mallaro said. "People deserve to pick their own health-care providers, not forfeit that right to federal bureaucrats who make decisions based on willingness to do less and be paid less. Medicare beneficiaries deserve to be treated like everyone else who receives medical care and not as second-class citizens. It has to be stopped."