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WASHINGTON—The Center for
Regulatory Effectiveness has filed a petition to compel the Centers for Medicare
and Medicaid Services to halt DMEPOS competitive bidding until it publishes
financial standards for the program as required by law.
Bidding for the Round 1 rebid is
currently underway, with the bid window scheduled to close on Monday. CRE, a
regulatory watchdog organization, has already challenged CMS’ handling of the
program saying it is discriminatory, does not protect small businesses and is
not compliant with the Data Quality Act. Jim Tozzi, a CRE board member,
said that CMS has not yet responded to the petition, which was filed Nov.
20. “The easy way out for CMS is to
not answer the petition,” Tozzi said. “If they say no … I can go to court. But I
can’t go to court for a long time unless they act on
it. “I think they are going to have a
hard time in court if they do not release that document,” Tozzi added. “We have
the petition, the complaints and we are going to work on some congressional
investigations of the program. We have enough time [before it is implemented] to
change the program somewhat.” Round 1 is set to go live Jan. 1,
2011. In its petition, CRE points out
that the Social Security Act “prevents CMS from awarding competitive bidding
contracts to any entity unless they meet the agency’s specified financial
standards. “Because no such standards have
been specified, no contracts may be awarded,” the petition says, noting that the
same issue cropped up in the initial Round 1, which was aborted because of
numerous problems. The petition also points out that CMS did not disclose its
financial scoring system in that round. “Congress found the agency’s lack
of transparency on this issue to be unacceptable and prohibited any DMEPOS
competitive bid contract from being awarded unless the entity met the financial
standards ‘specified by the Secretary [of the Department of Health and Human
Services],’” the petition reads. The petition points out that
providers currently have no way to know whether or not they are fulfilling the
financial standards when they place their bids. “There are currently no publicly
available objective financials standards or algorithm which a qualified person,
such as a company CFO or accountant, could use to determine whether or not the
entity met CMS’ financial qualification requirements,” CRE
asserts. Yet, CMS has said that “if a bid
is not bona fide, we will eliminate the bid from consideration,” CRE notes.
CMS has “published only vague
generalities as to what financial standards have been decided upon by CMS,”
according to the petition. “If companies that do not meet the standards could
determine so prior to bidding, they could save themselves the expense of
developing and submitting bids,” the petition states.
As well, the petition says, small
companies might have expanded their businesses to participate in competitive
bidding only to discover that “the debt taken to finance the expansion would
then make them ineligible for the CMS
program.” The petition is the second time
CRE has challenged CMS to make changes to the bidding program. CRE has already
called on the agency to allow any small provider who fits the accepted
governmental definition to participate in Medicare at the competitive bidding
price. Currently, CMS has said only the winning providers will be allowed to
service Medicare patients in the nine Round 1 bid areas, a plan that
stakeholders say could eliminate 90 percent of providers from the
program. Even as the CRE team continues to
challenge CMS on bidding issues, hundreds of providers and beneficiaries have
aired their complaints about the program on the CRE Web site. Waterloo,
Iowa-based VGM has encouraged its members to funnel complaints about competitive
bidding to CRE so it can track them. “They are really being hurt,”
Tozzi said about HME providers. “They’re mainly worried that very few of them
are going to be around—and they’re right.” As to the complaints from
beneficiaries, Tozzi said, “their major concern is, anyone can sell us the
hardware; we’re worried about the service.” A look at the Web site forum with
its 24 pages of comments shows beneficiaries to be almost panicked about their
care prospects, and that is echoed by providers’ comments.
One Boston-based respiratory
company reported: “A small DME company in Massachusetts is deciding not to
continue in the Medicare program and will be filing Chapter 11 soon. Twenty-nine
out of 75 oxygen patients are capped. We were approached by this company to help
them out. Unfortunately for the patients, the company cannot find a provider
willing to service 29 capped patients who all require tanks and liquid. These
patients were sent a letter stating that in 30 days they will not have a
provider.” Wrote a beneficiary: “Right now,
I have a company that I enjoy, they’ve always been there for me, midnight, 2 in
the morning, if the power goes out. They’re bringing me down extra oxygen when I
need it and I’ve grown to depend on [them]. I’ve had them for 12 years and I
don’t want somebody coming in and telling me that I have to use somebody from
another town or another area or even someone else in this town because I feel
this is my right and my choice and it’s one of the freedoms I still enjoy and
have.” Tozzi believes the forum provides
more than just a place to air concerns. “CMS reads it; so does congressional
staff. That shows that these are real constituents and not just
CRE.” But he stressed that providers
need to do more than post their complaints on the CRE site. “What would be
helpful is if they sent [their complaints] to CMS and sent a copy to us,” Tozzi
said. “We will track it.” Complaints should be mailed to
the CMS Competitive Acquisition Ombudsman, Tozzi said. “The reason is that the
ombudsman’s whole job is to look at complaints and they are not in the program,
so they are marching to a different tune,” he said. The ombudsman reports to
Congress. Complaints can be sent
to: Ms. Tangita Daramola Copies of complaints, along with
permission for CRE to use them in discussions with CMS, can be emailed to
cmscomments@thecre.com, or via U.S. mail to: The Center for Regulatory
Effectiveness “Our strategy is to show [CMS]
the complaints and hopefully, they are going to have to do something to fix it.
If we are going to make any reforms in the process before [the implementation
date], we need those complaints.” For more information, see the CRE Web
site at www.thecre.com/blog/. |