VGM files second competitive bidding lawsuit

Sunday, September 30, 2007

CLEVELAND - Unfazed by the government's motion to dismiss its first lawsuit to stop national competitive bidding, The VGM Group's Last Chance for Patient Choice planned to help a group of Medicare beneficiaries and providers in Ohio file a second lawsuit last week.

The Ohio lawsuit argues that CMS did not "appropriately analyze" the regulatory burdens that competitive bidding will place on providers, said Jim Walsh, general counsel and president of VGM Management.

"We're saying that CMS failed to prove there weren't other things that they could have done that would have been less burdensome," he said. "If we were successful in one district, it wouldn't necessarily bar the whole country, so we're trying a whole other set of facts."

The government filed a motion on Sept. 12 to dismiss the Texas lawsuit. Mainly, it argued that the industry's belief that health care is a fundamental right and that competitive bidding will reduce choice and services is "speculative."

Brown & Fortunato, the Amarillo, Texas-based law firm representing beneficiaries and providers in Texas, planned to file a resistance to the motion in federal district court.

"We anticipated the government would file the motion and anticipated the arguments made in the motion," stated Jeff Baird, an attorney who chairs the Health Care Group at the firm.

The district court judge will likely do one of two things, Walsh said: He will deny the government's dismissal, and beneficiaries and providers will have their day in court; or he will grant the government's dismissal, and they will file an appeal.

Even if the district court judge grants the government's dismissal, the industry hopes he does it in a way that would nurture an appeal.

"The judge might say, 'I understand and sympathize with you, but under current law, health care is not a fundamental right, and therefore, you're going to have to get an appellate court to recognize that before I can help you,'" Walsh said.

Michael Jordan, chair of the Health Care Litigation Group at Cleveland-based Walter & Haverfield, represents the beneficiaries and providers in Ohio.