If Democrats do become the majority party, it is highly unlikely that any significant legislation related to the Medicare program will pass this year.

Significant chapters in the history of the HME services industry will be written over the next 3 months. Major issues facing those businesses involved in the delivery of home oxygen therapy services, as well as those in rehab, remain unresolved at press time. Congressional action and/or regulatory reform is needed, but whether they can even happen depends on other forces.

The Home Oxygen Patient Protection Act (HOPPA)—a bill that would overturn the Deficit Reduction Act’s provision capping payment and transferring ownership of equipment used in the home after 36 months—has not been passed. HOPPA enjoys the support of prominent members of the US Senate, and has picked up about 50 sponsors in the House. That being said, there is cause for modest optimism that this issue will be addressed after the November elections.

As we have previously reported in this column, during the postelection session Congress has pledged to address a problem in the way Medicare pays physicians. This could provide a vehicle for other Medicare “corrections” to be enacted. However, fixing the physician reimbursement schedules will cost between $11 billion and $30 billion (depending on whose proposal would gain consensus and pass), and Congress would have to find a way to pay for this expense. All too often it has looked to projected savings in various provisions that limit payment for HME as the source of the funds.

There are several ways to pay for the “doc fix,” but each has its own “special interest group” trying to protect their funds. Our industry is among those groups, and has already garnered support in both the House and Senate to stave off any proposals to reduce oxygen payments.

There is, as always, a bit of political theater attached to the resolution of this matter. Currently, the Republican leadership of the House and Senate are committed to doing the “doc fix” during the postelection (aka lame-duck) session. However, political pundits now say that there is a better than 50-50 chance that Democrats will win enough of the open and contested races to be the majority party when the 110th Congress convenes next January. If Democrats do become the majority party, it is highly unlikely that any significant legislation related to the Medicare program will pass this year.

While the oxygen issue plays itself out, rehab providers are engaged in their own struggle. On August 15, 2006, the various carriers issued local coverage decisions (LCD) that effectively defined the coverage and payment policies for power mobility devices (PMDs)—power wheelchairs and scooters. That August 15 LCD was horrific. CMS and its agents ignored a nearly 2-year dialogue with the industry and the input from their own panel of “technical experts.”

Consequently, on September 20, 2006, the carriers issued a new and revised LCD for PMDs, now scheduled to go into effect on November 15, 2006. While some of the most significant issues have been resolved, there remain important details that must be fixed. In addition, the short time frame before implementation allows little time for the industry to negotiate changes. Rehab providers are engaged in a full-court press to try to get the LCDs further modified—until they can be amended to reflect the input of the clinician and consumer community, as well as the technical expert panel.

Consumer groups are also weighing in because of the adverse effect the LCD will have on their access to rehab and assistive technology. Representatives of industry, groups such as the National Multiple Sclerosis Society and the National Council on Independent Living, and individual consumers (spurred by a strong grassroots network), are asking members of Congress to write HHS Secretary Mike Leavitt and CMS Administrator Mark McClellan, urging them to resolve the remaining problems with the LCD.

There you have it. Two critical issues, each with the potential for profound impact on providers, both waiting for Congress to act—something that cannot happen until after the November 7 election.

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