Home Health & Hospice Week

Regulatory rescue comes as one lawsuit fails, another announced.

Following the failure of a last-minute lawsuit to halt implementation of the interim final rule on power mobility, the U.S. Senate swooped in to help durable medical equipment suppliers fend off the regulatory beast coming their way.

On Oct. 26, while considering the Department of Health & Human Services' budget for next fiscal year, the Senate approved an amendment banning the use of funds for implementing or enforcing the rule. The regulation took effect one day earlier after a federal judge rejected a legal challenge from the industry.

The amendment's sponsor was Sen. Arlen Specter (R-PA), who with Sen. Rick Santorum (R-PA) recently wrote to the Centers for Medicare & Medicaid Services asking that the rule's implementation be postponed until April 1, 2006. Sen. Charles Grassley (R-IA) also requested a delay in a separate letter (see HCW, Vol. XIV).

Specter's amendment requires CMS to withdraw the RULE and reissue a proposed rule by Jan. 1, 2006. Following a 45-day comment period, CMS would issue a final rule by Feb. 14 to take effect April 1. The House must also approve the measure, which would then go to the President for his signature.

Meanwhile, the rule remains in effect. But industry leaders "hope CMS will not wait for the president to sign it before putting this delay into effect," says Seth Johnson, chair of the Washington-based American Association for Homecare's Rehab & Assistive Technology Council. Court Rejects PMC Lawsuit Citing jurisdictional issues, a federal district court in Washington on Oct. 25 declined a preliminary injunction to halt implementation of the reg on power mobility devices, which took effect that same day.

The Washington-based Power Mobility Coalition sought the injunction, arguing the rule improperly increases the discretionary authority of CMS contractors by eliminating the certificate of medical necessity for PMDs. The group, a nationwide coalition of PMD suppliers, also charged that the rule was promulgated without proper notice and comment.

"The rule creates a new level of uncertainty in the claims approval process that will drive lawful suppliers out of the program and curtail access to needy beneficiaries," says PMC attorney Steve Azia. "We will work with CMS and Congress to ensure that an efficient system is developed, focused on the beneficiaries."

Even though the rule took effect Oct. 25, CMS is continuing to accept comments on it through Nov. 25. VGM Targets Competitive Bidding Meanwhile, the power mobility industry plans to file a federal lawsuit against CMS over competitive bidding, which is set to begin in 2007. The Waterloo, IA-based VGM Group is spearheading the effort, which it announced at the recent Medtrade conference in Atlanta.

"I am mad as hell, and I am not going to take it quietly anymore," [...]