The Medicare Prescription Drug, Improvement, and Modernization Act of 2003—Public Law 108-173—is the law of the land. For the HME services industry, this may be the worst piece of legislation ever enacted. None of the more than 300 new initiatives contained in the 678-page bill benefit the industry and many of them are capable of doing irreparable damage to providers and manufacturers alike.

At times like this, people engage in a lot of navel gazing to assess blame or ascertain how Congress could do this to the industry. Hindsight may be 20/20, but unless it reveals lessons that are applied to future challenges, it is a waste of time; there is more than enough blame to go around. Everything can be summed up in a few simple observations. First, the industry did not have a clear, concise message backed up by statistically sound studies to make its case.

Next, HME issues were competing for attention in a highly charged political environment that was hell-bent on creating a $400 billion prescription drug benefit to appease a large block of voters less than a year before presidential elections. Anything that was “scored” to save money was going to be included to pay for the drug benefit.

Finally, the industry entered the fray with few champions in Congress to offset several enemies in powerful positions. In short, the industry was outgunned.

So now what does the industry do?

First, the industry must acknowledge that the bureaucrats at the Centers for Medicare and Medicaid Services (CMS) are now responsible for implementing the initiatives contained in PL 108-173. As one of the final official acts before he resigned as CMS administrator, Tom Scully went through the legislation and assigned each initiative to a CMS section or career staffer. In most cases, these assignments do not make a lot of sense. The sheer number of new initiatives forced assignment of many initiatives to people unfamiliar with the issue or the industry. The industry must identify who is responsible for each of its issues and establish a relationship with the lead staff member.

For some time, the industry has invested heavily in high-priced lobbyists. Some criticize this practice based on a poor return on investment. But lobbyists are a necessary evil. However, now that the ball is in CMS’ court, the industry must figure out how to secure the involvement of experts in the regulatory process who have good contacts within CMS. This means spending as much, if not more, time and money on regulatory affairs as on lobbying.

CMS has so much on its plate that it will welcome help from outside the agency and that gives the industry an opportunity to make the provisions of PL 108-173 more palatable.

The industry must quickly develop—and effectively implement—a coordinated effort to work with the staff at CMS. Businesses cannot afford to leave this important work up to the trade associations, and the trade groups cannot pretend that they have the resources necessary to effectively watch over and influence all the initiatives being worked on by CMS staff.

There will be opportunities to reverse some of the losses incurred last year but only if every individual and business that is part of the industry are ready and willing to participate. To get Congress to revisit some of the more onerous provisions of PL 108-173, the industry must use its lobbyists along with a real (not rhetorical) grassroots campaign that includes every provider and as many consumers and consumer groups as possible. This means developing a public relations and a political strategy that are linked by a common message. Key to any success is an all-out effort to recruit and educate members of Congress so they can become articulate advocates for the HME industry.

It is a new day for the HME services industry. Whether or not it will be a good day remains to be seen. The deciding factor will be how the industry responds to the challenges confronting it.

Cara C. Bachenheimer, JD, is vice president of government relations for Invacare Corp, Elyria, Ohio. David T. Williams is a consultant for political and legislative strategy.