VGM Plans Class-action Lawsuit
Grassroots Central—John Gallagher, director of government relations for the Van G. Miller (VGM) Group, Waterloo, Iowa, announced VGM’s plans for a class-action lawsuit accusing CMS of forming a two-tier system through competitive bidding. “We started a 527, which is a vehicle within the IRS that allows you to collect money as an advocacy group,” said Gallagher at this year’s Grassroots Central sponsored by Home Health Care Dealer/Provider and the American Association for Homecare at Medtrade Atlanta. “So we are getting contributions and we are going to run with a lawsuit. We are going to wait for CMS to come out with the 10 metropolitan statistical areas (MSAs), and we have already met with lawyers in several states. And what they have said is that Medicare is setting up a two-tier system, and a two-tier system then sets up a class issue and access issues. So we will find some beneficiaries in those MSAs who will come forward and we will bring a class-action lawsuit. Are our chances good? No. But they are better than taking a stick in the eye.” John Gallagher
As for industry efforts to work within the legislative system, Gallagher noted that 12 additional sponsors recently signed on to HR 3559 bringing the total to 38. “We are hoping to get that momentum going and transfer it over to the Senate,” said Gallagher. “If you remember with HR 4491, there was no chance of a companion bill in the Senate.” Gallagher cautioned that more providers must become involved to get the required cosponsors. “One thing we must do is reach out to those providers who are not members of AAHomecare, not members of their state associations. If we keep going back to that same 10%, we are going to burn those folks out,” said Gallagher. “There are some senators, Grassley and others, that are willing to take this up and run if there is momentum in the House and they feel comfortable that it will pass in the House.” The many crucial provisions of HR 3559 include: allowing all qualified providers that are small businesses ($6 million or less in revenue), and that submitted a bid below the current allowable, to participate at the selected award price; and exempting items and services unless savings of at least 10% can be demonstrated, compared to the fee schedule in effect on January 1, 2006. Gallagher said that legislators will respond if part of the discussion is framed under the umbrella of small business. “If you talk with members of the Senate, small business is important,” said Gallagher. “Small business is the engine of our economy and small business is something they can grab hold of. And what we want to talk about is small business and the elimination of small business under competitive bidding.” In a statement released after Medtrade, James E. Walsh, Jr, corporate counsel and president of VGM Management Ltd, said VGM will continue to support HR 3559, but added that “VGM believes that much more is needed soon, therefore we are preparing a federal lawsuit seeking to strike sections of MMA on constitutional and other grounds. This litigation is being supported by VGM and will be brought in the names of patients of VGM Group Members as soon as CMS designates what the first 10 MSAs are.” |
Bachenheimer: Crucial Days Ahead
Grassroots Central—At least for now, codes and fee schedules for power mobility devices remain unchanged, so says Cara Bachenheimer, JD, vice president of government relations for the Invacare Corp, Elyria, Ohio. “We are going to stick with the K10, 11, 12, and 14 codes that we have today with the reimbursement amounts for the foreseeable future,” said Bachenheimer at this year’s Grassroots Central. “And CMS is setting up a process for us to work collaboratively—they say—to develop a code set that makes sense based on the technology that’s in the marketplace.”
Bachenheimer recounted the September 14, 2005, document from CMS that sparked particular frustration. The document was a new set of codes to replace the 49 codes that were issued in February. “Basically, it said, ‘Never mind. We did not really mean those codes and testing requirements. We have a new set of 65 codes,’” said Bachenheimer. “One month later on October 14, CMS announced—much to our joy for a change—that they are retracting the 65 codes along with the related testing requirements. The next thing that is going to happen is the interim final rule on October 25. And it is our number one priority to get that delayed at this time.”
Pull Back Everything
“What we need CMS to do is pull back everything, not just the codes, but all of these power mobility device issues and consolidate them into one proposed regulation, so that we force CMS to have a rational implementation of these policies that are all connected,” said Bachenheimer. “But we have three different groups within CMS that don’t talk to each other developing these regulations.”
Bachenheimer said that both senators from Ohio, and a number of representatives, were going to have a delegation meeting with Mark McClellan the week of October 24 to discuss this issue. “Rationality and logic have a lot to do with this, and people on the Hill do understand,” said Bachenheimer. “When you explain what has happened, they say, ‘What are they [CMS] smoking over there?’”
Bachenheimer urged attendees not to wait and to get their comments in to CMS now. “On November 25, 2005, comments are due to CMS on the interim final rule that goes into effect on October 25, 2005,” said Bachenheimer. “And November 28 is the deadline for comments on the draft quality standards for suppliers that were unveiled on September 23—that 109-page document. This stuff is really critical to everything that we do in the future. Comments don’t have to be formal and you can literally just e-mail them in.”
HME Excellence Awards
Roberts Home Medical, Germantown, Md, received recognition this year as the nation’s best respiratory provider at Medtrade’s annual HME Excellence Awards created by trade publication HME News. Equipped for Life, Hagerstown, Md, earned Best HME Provider while Inland Medical & Rehab of Spokane, Wash, won the award for Best Rehab Provider.
Lisa Smith
Grassroots Central
Brown & Fortunato: Changes in Medicare Appeals
Grassroots Central—After January 1, 2006, be prepared to deal with qualified independent contractors (QICs) for Medicare appeals under Part A and Part B, say attorneys from Brown & Fortunato, Amarillo, Tex. “There has been legislation passed that requires the Medicare appeals process to be sped up,” said Lisa Smith, JD, at the Grassroots Central HME Legal Panel also attended by Jeff Baird, JD, Denise Fletcher, JD, and Clay Stribling, JD. “They have put in time frames now where decisions have to be issued in close to under a year if everything gets filed in time. The first change has already been put into place and that is the redetermination level at the carrier level. Basically, you have 120 days from the date of the initial decision to file your request for a redetermination. The carrier then has 60 days to issue a decision on that redetermination. If you disagree with the redetermination, you have 180 days to file a request for what is now going to be called a reconsideration.”
Providers have 180 days from the date of the redetermination to file a reconsideration request, and then the administrative law judge (ALJ) must issue a decision within 60 days after a request is filed. “This is going to put suppliers under a much tighter deadline for getting their documentation in,” cautioned Smith. “The other big change is that documentation not provided at the QIC level will not be able to be introduced at the ALJ level.”
Competitive Bidding: Waiting for the Word
If you are still waiting for answers on nationwide competitive bidding (NCB), you are not alone. What exactly is a “rural area?” What are “significant savings?” Seth Johnson (Pride Mobility), Don Vliegenthart (Hoveround), Cara Bachenheimer (Invacare), and Rita Hostak (Sunrise Medical) pondered these and other questions at a Medtrade panel discussion.
The good news regarding NCB is that the Hobson-Tanner Bill is gaining ground, and Bachenheimer noted that the industry still has until 2006 to gather support and pass HR 3559. The bill has a goal of 200 cosponsors before the end of the year. Bachenheimer said a companion bill to HR 3559 may soon be introduced in the Senate.
New draft supplier standards have not eased worries. The proposed quality standards include two sections. Section one covers business standards that apply to all suppliers and focus on standards for administration, financial management, human resource management, management of beneficiary services, performance management, equipment and safety, beneficiary rights and ethics, and information management. Section two covers product-specific service re-quirements focusing on the product specialization of the provider and details on provider service standards. Although the document seems overwhelming, the panel reminded attendees that it is only a draft and providers will have to wait until the release of the final regulations to see how standards will actually be implemented. DP
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