The House and Senate voted to override President Bush's veto of HR 6331 last month, officially making the 18- to 24-month delay of DMEPOS competitive bidding a reality. The final tally in the House was 383-41. House Democrats voted 230-0 in favor of the override, with Republicans voting 153-41 to supersede the president's veto. In the Senate, the override passed 70-26.

Just a week prior to the veto, HR 6331 passed with 69 votes in the Senate. Industry watchers hoped the veto-proof margin would hold, and ultimately, it did. "We've achieved a miracle," said Georgie Blackburn, vice president government relations and legislative affairs for Blackburn's, Tarentum, Pa, after the first Senate vote. "In 30 years, I don't recall our stopping any CMS initiative."

Georgie Blackburn

President Bush made good on his threat to veto the legislation due to his opposition to Medicare Advantage cuts. However, with such solid support in both houses of Congress, the veto could not stand. "If competitive bidding resurrects within the next administration," says Blackburn, "it will be with the multitude of improvements mandated by HR 6331."

Over at VGM, the focus quickly changed to the future, and possible strategies down the road. "While we won a decisive battle, the war is not over," wrote John Gallagher, vice president, government relations, in the VGM Legislative Update. "We must now fight to put an end to the competitive bidding program. The industry must continue with its grassroots efforts and maintain communication with their members of Congress."

The bill contains language that:

• delays competitive bidding by 18 months;
• exempts high-end rehab items from the bid program;
• pays for the delay with a 9.5% cut (effective Jan 1, 2009) on all items included in round one of the bid program; and
• repeals title transfer mandate of oxygen equipment.

The bill does not include additional cuts to oxygen, and does not include a provision to eliminate the purchase option for standard power wheelchairs. "This is the most positive development we've had in this industry for probably the last 5 years," said Tim Pederson, ATS, CEO of WestMed Rehab Inc, Rapid City, SD, and chair of AAHomecare's Rehab and Assistive Technology Council. "This gives us a semblance of stability that we haven't had in some time."

John Gallagher

Other relevant parts of the bill included provisions that would:

• require CMS to notify bidders about paperwork discrepancies and give suppliers the opportunity to correct them within a reasonable time frame;
• provide CMS with the authority to subdivide MSAs with more than 8 million people;
• exempt rural areas and MSAs with a population of less than 250,000 from competitive bidding for at least 5 years;
• require that suppliers who bid on diabetic testing supplies offer brands that cover at least 50% of the market by volume (does not apply to round one);
• require CMS, before using its authority to adjust prices in nonbid areas, to issue a regulation and consider how prices set through competitive bidding compare to costs for such items in nonbid areas;
• require HHS's Office of Inspector General to verify calculations used to determine the pivotal bid amount and winning bid amounts;
• require all suppliers to be accredited by October 1, 2009;
• ensure that all suppliers, whether they are billing Medicare directly or are a subcontractor to another supplier, be subject to accreditation;
• exclude complex rehabilitation wheelchairs, and related accessories when furnished with such wheelchairs, from competitive bidding; and
• exclude negative pressure wound therapy from round one and require CMS to evaluate how these items are coded and paid.

Tim Pederson

In the wake of the competitive bidding delay, the urgency of pending lawsuits is undoubtedly diminished. However, Jeffrey S. Baird, JD, chairman of the Health Care Group at Brown & Fortunato (B&F), says that legal remedies still have a role to play. Of the four separate competitive bidding lawsuits still pending, none succeeded (so far) in efforts to nab a temporary restraining order and/or injunction to halt the bidding program.

In the suit brought by B&F and funded by VGM's Last Chance for Patient Choice, Baird attended a 2-hour hearing in front of a federal judge in Dallas last month, where he and his associates argued for a temporary restraining order (TRO). "The judge determined we did not have the standing to pursue at that time," added Baird. "And she denied the TRO."

Despite the legislative delay, Baird says that he will keep the lawsuit going and go after a permanent injunction sometime in the future. "We'll ask for a hearing on a permanent injunction sometime before the delay period is up," says Baird. "We would consider dismissing our lawsuit only if competitive bidding were done away with. Because right now competitive bidding may only be delayed, and that means it's going to rear its ugly head again in 18 to 24 months. We don't want to have to go through this again in 18 to 24 months."

Greg Thompson is editor of HME Today.