Home Health & Hospice Week

Industry lawsuit targets impending rollout of interim final rule.

The Centers for Medicare & Medicaid Services has slammed the brakes on implementation of new wheelchair codes--and mobility equipment suppliers are now hoping a last-minute lawsuit might be the spoke in the wheel to halt the wheelchair coverage policy scheduled to take effect Oct. 25.

Following industry protests over the rushed regulatory timeline, CMS on Oct. 14 announced it was delaying implementation of the new wheelchair codes "until it has an opportunity to review these changes with input from manufacturers, suppliers, and other stakeholders," the agency said in a statement. The agency originally planned to implement the codes in January 2006.

In the meantime, the durable medical equipment regional carriers will update their local coverage determinations for mobility equipment so those policies accurately reflect the national coverage determination criteria, CMS noted in the announcement.

In February, CMS issued 49 new codes for power mobility devices and established product testing requirements to help classify equipment by industry standards for performance and durability. Last month CMS revised those codes, adding 13 new ones and modifying a number of the testing requirements--even though the testing deadline had already passed.

That move sparked outcry from the industry, with some manufacturers complaining they would have to go back to the drawing board and re-test their equipment (see Eli's HCW, Vol. XIV, No. 34).

Power mobility suppliers and manufacturers took their concerns to Congress, enlisting the support of Sens. Charles Grassley (R-IA), Rick Santorum (R-PA) and Arlen Specter (R-PA), who wrote letters to CMS expressing concerns about the agency's timeline.

Requiring manufacturers to comply with the more stringent September codes "may likely overwhelm the resources and facilities of even the most resilient manufacturers, given the current implementation schedule," Santorum and Specter wrote to CMS Administrator Mark McClellan.

The lawmakers also asked CMS to delay implementation of the interim final rule on wheelchair coverage. The agency declined, saying the new policy would take effect as planned on Oct. 25. However, an industry lawsuit is seeking to force a postponement.

Filed Oct. 13 by the Washington-based Power Mobility Coalition, the suit asks for a preliminary in-junction preventing the rule's implementation, charging that it would limit beneficiaries' access to needed equipment, increase physicians' regulatory burden and irreparably harm suppliers. PMC also accuses CMS of issuing the rule without proper notice and comment, noting that the regulation is scheduled to take effect a month before comments are due.

"This lawsuit is a way to get suppliers' and beneficiaries' message across," PMC Executive Director Eric Sokol tells Eli. He expects a hearing to be scheduled any day.

Code Delay Timing Creates Confusion

CMS' decision to announce the code implementation delay one day after PMC filed its lawsuit has led to some confusion on Capitol Hill, Sokol reports.

Congressional staff members have contacted the PMC to ask whether CMS' announced code delay satisfies the industry's concerns over the regulatory timeline. Sokol has had to clarify that CMS postponed the effective date of the codes only--not the rule. "We're pleased CMS delayed code implementation for billing purposes, but they state clearly that they intend to implement the interim final rule on Oct. 25," says Sokol.

Should the PMC win a preliminary injunction, it hopes to open a dialogue with CMS to cooperatively develop solutions addressing the needs of all stakeholders. 

Note: CMS' code-delay announcement is at www.cms.hhs.gov/suppliers/dmepos/pmdannouncement_101405.pdf. For a copy of the PMC lawsuit, visit www.pmcoalition.org.