In our September column, we issued a call to action in light of then-upcoming 2-day CMS Program Advisory and Oversight Committee (PAOC) meetings, including the imminent unveiling of proposed regulations and supplier standards of service for everything from mobility devices to home respiratory care. That call must now be upgraded to a RED ALERT, if not a full-scale political assault on CMS by members of Congress who understand the chaos if many draft policies are implemented as proposed.

At the September 26-27 PAOC meetings, CMS heard from six panels representing the HME industry: respiratory care, HME, prosthetics and orthotics, diabetic supplies and systems, enteral nutrition, and rehabilitation technology. An additional panel of consumer organizations also made presentations. These meetings were conducted as part of CMS’ preparation for implementing competitive bidding. They, in conjunction with meetings of the PAOC, are the agency’s effort to comply with Congress’ mandate that the industry be consulted before competitive bidding is implemented in 2007.

To show how well CMS listened to the industry, draft DMERC policies, based on the new national coverage policy issued in May for rehabilitation products, were released on September 14. These draft policies indicate that all the time the PAOC spent meeting with and providing information to CMS was simply an exercise so the agency could look Congress in the eye and say, “These changes are based in large measure on what we learned through extensive meetings with industry leaders.” We know we are combining what many have been thinking of as separate CMS policies—development of new coding, coverage, and payment for power mobility devices—and development of a competitive bidding program for DMEPOS items. But these policies are closely related; remember that CMS’ primary stated objective with refining the coding system for power wheelchairs was always competitive bidding.

To put it in simple terms—the industry has been duped! CMS entered its infamous “listening sessions” with one goal in mind: reduce spending on HME and rehabilitation products. If allowed to proceed, CMS will make it virtually impossible for consumers to access the technology that trained medical professionals believe is most appropriate for their needs.

It is hard to find the most egregious insult in these new documents. Since the ultimate goal of providers is to find the way to best meet the needs of their customers, let’s start with “in the home.”

The first standard for mobility devices—manual wheelchairs, power operated vehicles, and all power wheelchairs—is based on a new term created by CMS. Sticking to its interpretation of a statute that says these products are covered only for use in the home, mobility-related activities of daily living (MRADL) has been coined. In other words, patients will not qualify for the appropriate mobility device unless they can prove they use it “for toileting, feeding, dressing, grooming, and bathing performed in customary locations in the home.”

In addition, CMS has created new codes, new definitions, and new technical standards for power wheelchairs and scooters without input from the industry. Remember the final codes and testing requirements announced in February? Gone. Through its September 15, 2005, Web posting, CMS replaced those 49 codes wholesale with 63 new and different codes and testing requirements. The industry had no input on this replacement code set.

In the draft regional medical policy posted on September 14, 2005, it is clear that CMS has accomplished its long-standing goal of separating high-end rehabilitation (wheelchairs requiring specialized seating systems and/or alternative control systems) from other mobility products. With that done, they turned to the regional medical policy and took care to reduce consumer options to the item that is least costly. Taken to a reasonable point, these new policies would deny POVs to beneficiaries unless they needed them to ride into the bathroom to brush their teeth!

There are two extremely good reasons to be worried. First, CMS has now demonstrated that input and advice from the industry are unlikely to be given any consideration when policies are written. The other is that history shows that Medicaid programs and private insurance plans rapidly follow CMS’ lead on issues like these—not to mention that HIPAA requires all health plans to use CMS-generated HCPCS codes in claims processing.

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.