• CMS Fails to Respond to Crucial Public Comment in Competitive Bidding Final Rule

    Over two-and-a-half years after the close of the comment period on the Interim Final Rule for competitive bidding, CMS has issued the Final Rule which failed to address many of the concerns expressed regarding the agency’s competitive bidding process.  In refusing to respond to comments on the bidding process and how CMS evaluates bid, CMS stated:

    We note that we received many comments on a wide range of issues that were not addressed in the interim final rule. We thank commenters for sharing their views on these issues; however, because these comments were outside the scope of the interim final rule, we do not address those comments in this final rule.

    Thus, by not seeking public comment on their bidding rules for  the Round 1 Rebid and Round 2, CMS avoids public comment on crucial aspects of a major regulatory proceeding. Instead, CMS prefers hiding behind the fiction that they had no discretion in developing the bidding system for the Round Rebid as were merely issuing a rule to “conform” to specific statutory requirements.

    As CMS explains it, 

    Because CMS issued the rule to conform to the specific statutory requirements contained in section 154 of the MIPPA it was impractical, unnecessary, and contrary to public interest to use notice and comment rulemaking to incorporate these provisions into regulations.
    CMS does not mention that section 154 of MIPPA gave the agency virtually unlimited discretion to reform the failed Round 1 bid evaluation process.  The agency chose not to exercise that discretion and also chose to avoid public comment on the vital issue of how to conduct a competitive bidding program for DME.

    Over two-hundred economists and a senior Congressional Budget Office official are among those who have strongly criticized the CMS program as non-transparent, non-competitive acquisition system which will hurt Medicare beneficiaries.  CMS apparently believes those concerns are best addressed by ignoring them.  In contradiction to the President Obama’s Executive Order on regulatory review, CMS has become the agency were regulatory transparency and accountabililty go to die.

    Attached below is CMS’ final rule.

    CMS Final Rule on DMEPOS Competitive Bidding, ESRD, and other issues

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