There is broad bipartisan support in both the House and the Senate for the idea that CMS has gone too far.

Providers are probably wondering about the status of legislation affecting the HME/rehab industry now that Congress has returned to work after a 30-day recess. This is a good time to check on the status of those bills and offer a "political prognostication" of the chances of them becoming law.

The most current information available shows that HR 621/S 1484, the Home Oxygen Patient Protection Act (HOPPA), has 112 cosponsors in the House and five cosponsors for the Senate version. This legislation was introduced in response to a provision in the Deficit Reduction Act (DRA) that would transfer ownership of oxygen concentrators and other home respiratory equipment to the Medicare beneficiary at the end of 13 months, thus significantly reducing home oxygen reimbursement rates.

HR 1845/S 1428, the Medicare Durable Medical Equipment Access Act—commonly referred to as the Tanner, Hobson/Ross Bill—was introduced to neutralize or eliminate some of the provisions of CMS' final rules implementing the "competitive acquisition" program. The bill has 109 cosponsors in the House. The Senate version, introduced by Senators Conrad (D-ND) and Hatch (R-Utah), has 12 cosponsors.

HR 2231 was introduced at the request of the National Coalition for Assistive and Rehab Technology (NCART), and currently has 18 cosponsors. This legislation would define and carve out/exempt "complex rehabilitation and assistive technology" from the Medicare competitive acquisition program.

The last piece of legislation is the Medicare Independent Living Act, (HR 1809), which has 18 cosponsors and a lot of support from consumer organizations. This legislation would neutralize the onerous "in the home" reference from the section of the Social Security Act dealing with wheelchairs and other mobility devices.

No doubt about it, the HME/rehab industry has put forth an aggressive legislative agenda. Now the question is, how do we change legislation into law? Many industry advocates were hoping to attach one or all of the above pieces of legislation to a "must pass bill" like the reauthorization of the State Children's Health Insurance Program (SCHIP) that has passed the House and Senate, and will move to a conference committee in September. However, wrangling between the White House and Congress over expansion of the program has resulted in a decision not to attach any "Medicare amendments" to this bill.

As much as many of the Senators running for President would like to see it happen, the leadership is unlikely to bring up any major Medicare reform legislation before the end of the year. Why? Because Medicare reform is always difficult and controversial—inevitably leading to a national debate about health care. This is especially true in 2007 because the early presidential primaries have resulted in early candidate debates. All the candidates participating would love to support or object to a specific piece of legislation.

As this column is being written, Congress has yet to pass any of the 13 appropriations bills that are necessary to keep the government running beyond September 30. There is a strong likelihood that these bills will be rolled into an "omnibus" appropriations bill that, in the past, has been the kind of vehicle to which the industry-supported legislation could be attached. However, the White House and Republicans in the Senate are likely to insist that any appropriations bills be "clean." That is, they will not have any extraneous amendments attached to them.

There is one "must-pass" piece of Medicare legislation that is likely to move late this year. Congress will enact legislation correcting the physician fee schedule under Medicare to pre-DRA levels. This legislation could serve as a vehicle to attach some or all of the industry's legislative initiatives. However, CBO has not scored any of them yet, and the cost estimates could cause Congress to avoid attaching them to the so-called "Doc-fix" legislation.

Polls show that Americans are concerned about health care, and it is certain to be the major domestic issue (the war in Iraq will lead the foreign-policy debate) of the 2008 presidential election. With the presidential candidates proffering their ideas about health care, it is highly unlikely that Congress will debate the issue. This means no Medicare reform legislation in 2008, and therefore a paucity of potential vehicles to carry the industry's legislative agenda across the finish line.

So what is the HME/rehab industry to do? The answer is simple. Don't give up. Don't quit doing what you have been doing. The fact that 112 members of the House of Representatives are cosponsors of HOPPA makes it clear that the message is getting through. There is broad bipartisan support in both the House and the Senate for the idea that CMS has gone too far. This creates an environment where any one of the industry's legislative initiatives could slip through the cracks and become law. n

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