In what can only be described as an overwhelming, bipartisan repudiation of CMS' handling of the nationwide competitive bidding (NCB) program, Congress voted to override a presidential veto of Medicare reform legislation. That action essentially moves the agency back to square one as far as NCB is concerned, carves out complex rehab from future bidding programs, and repeals one of the most onerous provisions of the Deficit Reduction Act (DRA).

Stand-alone legislation was introduced by the Chairs and Ranking Members of the committees of jurisdiction in both the House and Senate (in an extremely rare expression of total exasperation with CMS), and drew the enthusiastic support of numerous Republicans and Democrats in both chambers. The message from congressional and grassroots sponsors and supporters of the bill was clearly that CMS' implementation of the program was poorly thought out and executed, and that the agency had overstepped its authority—or at least the bounds of reasonableness in several cases.

Specifically, the new law terminates contracts awarded under round one and restarts the contracting process in those areas in 2009. It delays the round two contracting process until 2011, delays CMS authority to apply bid rates in nonbid areas until round two contracting is completed, and permanently exempts complex/high end rehab items from the bid program. Regarding oxygen, the law repeals the DRA provision that had required that beneficiaries assume ownership of oxygen equipment after 36 months of medical need.

The timing was perfect for this legislation to move and to move over a presidential veto at that. It was one of the last pieces of legislation to become law in the final year of an extraordinarily unpopular president. And consumers came out in droves to express their opposition to the NCB process.

Consumer sentiment is clearly expressed in the testimony of Peter Thomas of the Consortium of Citizens with Disabilities (CCD): "It is important to remember that in addition to seniors, the Medicare program serves the health care needs of more than six million beneficiaries below the age of 65 who have become Medicare eligible due to a disability that is severe enough to prevent them from working."

As Thomas noted, many consumer organizations have opposed the Medicare DMEPOS competitive bidding program since 1997 when the demonstration projects were authorized by statute. He allowed that "to date, the competitive bidding program has been largely viewed as a provider/supplier issue centered on the price that Medicare pays for durable medical equipment and supplies." However, Thomas went on to express great concern over consumer access issues. "As we now begin to see the details of implementation of this program and the real-life impact that these enormous changes in the benefit will have on beneficiaries, we feel that the consumer voice needs to be amplified. CMS is about to begin a massive experiment, and individuals with disabilities and chronic health conditions are the unwitting participants."

And amplified it was. In addition to the powerful testimony of CCD, ADAPT, the National Council on Inde­pendent Living (NCIL), the United Spi­nal Association, the National Spinal Cord Injury Association, the Muscular Dystrophy Association, the Lupus Founda­tion of America, and the Ameri­can Association of People with Disa­bilities all launched Consumer Action Alerts that resulted in thousands of consumer letters, e-mails, and faxes reaching the Capitol Hill offices of members this summer. All these consumer organizations shared the same concerns—that the bid program would decrease quality, service, and access.

For example, NCIL's statement on the bid program included its serious concerns with the reduction in the number of approved suppliers, because that means limited choices for consumers, long­er waiting periods for equipment and repairs, and longer consumer travel distances to obtain or repair their equip­­­ment. The bid program would also force consumers to change brands, options, and flexibility of equipment and supplies that currently meet their needs.

The American Lung Association and the American Cancer Society did the same on the oxygen equipment issue. The result was a veritable "perfect storm" of 1) popular opposition to a program viewed as the ultimate bureaucratic boondoggle; 2) an election year; and 3) a piece of "must-pass" Medicare legislation in the form of the repeal of a 10+% mandated physician fee schedule cut.

Competitive bidding is not dead. In fact, CMS has the authority to begin the process all over again next year, though it must make a series of changes that Congress has now required. But this time they will have to do it knowing that Congress has little stomach for a lot of consumer outrage, and there is a whole cadre of consumer organizations with acid indigestion over the very idea of competitive bidding.

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