The decision to establish an adversarial relationship with the very entities that “sign the paychecks” is difficult, and should be entered into cautiously. However, playing by the rules has not worked.

Okay, gloves off. The industry—home oxygen therapy, HME, and high-end rehabilitation providers—has played by the rules, cooperated with CMS, and been honest with members of Congress.

Well-researched reports have been submitted that refute assumptions upon which draconian policy decisions are based. Reputable consumer organizations, physicians, and advocates have expressed concern about policy and program changes. All this and more has been done to protect an industry that must be vibrant as the nation’s health care system faces unprecedented demands brought on by unchangeable demographics

As this column goes to press, the prospect of nationwide competitive bidding being implemented in 2007 becomes more likely now that contracts to administer the program have been awarded to Palmetto GBA and the final rule is scheduled to be published soon by CMS.

Despite having 74 bipartisan cosponsors in the House and heavy hitters supporting it in the Senate, the likelihood of the Home Oxygen Patient Protection Act (HOPP) being passed in a lame-duck session is slim. Pollsters and pundits predict significant Democratic gains (if not outright takeover of one or both houses) in the November elections, and therefore new dynamics will cause chaos in an already sharply divided Congress. In all likelihood, Congress will reconvene long enough to pass a simple continuing resolution and go home leaving issues like HOPP to be addressed by successors.

CMS continues to ignore the concerns expressed by its own technical expert panel, and stands by new codes, coverage policies, and fee schedules that will make it impossible for rehab technology providers to meet the established clinical needs of their customers. Absent a strong consumer outcry, it sees no reason to stop moving ahead with policies and procedures that in many cases are in conflict with each other.

How did all this happen? Arguably, the HME services industry is more attuned to the ways of Washington than ever before. A significant number of experienced Washington insiders navigate the corridors of Capitol Hill on the industry’s behalf. Information on the ill-advised actions listed above has been provided to  members of Congress and their staff members. Consumers, providers, and referral sources have all weighed in expressing their concern that these actions will reduce access to necessary products and services as well as adversely affect clinical outcomes.

The answer is simple. Despite the introduction of several pro-industry pieces of legislation, the majority of the members of the 109th Congress overall proved to be indifferent to the health and welfare of the industry—and the people it serves. CMS, guided by provisions contained in poorly written and researched legislation, seized the opportunity to punish the entire industry for the bad behavior of a few providers.  

To survive, the industry must publicly express its anger in two ways. Money must be raised to support an intensive public awareness campaign that includes magazine ads, television spots, and supporting materials. The industry must make Medicare beneficiaries and the general public aware of what lies ahead if these policies are implemented. It is time to drop these issues on the steps White House steps.  

The legislation behind the policies that haunt the industry was able to become law because of the indifference or concurrence of the President. He has the power to slow down competitive bidding, direct CMS to rethink oxygen reimbursement policies, and rescind unreasonable coverage guidelines and fee schedules.  

The industry must establish a “legal defense fund” and file lawsuits that point out how CMS ignored the provisions of the Administrative Procedures Act, circumvented its own policies and procedures, and ignored advice of technical experts the agency itself had impaneled. Lawyers representing the industry should seek temporary restraining orders that require CMS to stop the scheduled implementation and application of onerous programs and policies.

For years, the industry has tried to work with CMS and educate Congress. This approach has not worked. The decision to establish an adversarial relationship with the very entities that “sign the paychecks,” is difficult and should be entered into cautiously. However, playing by the rules has not worked. Perhaps some embarrassing TV spots and a few well-placed lawsuits will bring Congress to its senses and CMS back into constructive dialogue with an industry that will play an integral part in managing health care costs now and into the future.

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