Senate Bill Aims to Nix ‘Burdensome’ Regulation on HMEs

S.B. 358 would force HHS, CMS to regulate per President’s Executive Order to remove overzealous, unnecessary regulation.

WASHINGTON, D.C. -- Speaking at the American Association for Homecare’s Washington Conference, Sen. Pat Roberts (R-Kan.) has proposed a bill that would hold federal agencies to President Obama’s Jan. 19 Executive Order to reduce federal regulation, including the voluminous regulations to which HME providers must adhere.

“I congratulate the President on issuing the Executive Order, and I agree in principle with that order,” Roberts says. “But I really don’t believe that his Executive Order does what it purports to do.”

Roberts explained that the Executive Order had enough loopholes to “drive a grain thruck through,” and that S.B. 358, the Regulatory Responsibility for our Economy Act of 2011, would provide hard language and deadlines to ensure Federal agencies determine a plan for reviewing their regulations to remove excessively burdensome or duplicative regulatory requirements. Agencies would need to carry out their plans within a year under S.B. 358 and repeat the process every five years.

The bill currently has 42 co-sponsors, and Roberts says he believes he can muster 10 additional Senate Democrats to support the legislation. He also says that the Department of Health and Human Services has told him that it will live up to the intent of the President's order.

“The good news is that [Secretary of Health and Human Services ] Kathleen Sebelius has promised me that [CMS] will do that,” says Roberts, who has known Sebelius since she was Insurance Commissioner and Governor of Kansas.

“And if they do that then that, it will tie up [CMS Administrator] Berwick for the rest of his time,” joked Roberts, who also is a member of the Senate Finance Committee, which oversees the Centers for Medicare and Medicaid Services.

After meeting with many HME providers in Kansas who were worried enough about current and future regulation that they were concerned about any long-term stability or viability for their businesses and thusly patient access to HME, Roberts said he shared these concerns with Secretary Sebelius and President Obama in a six-page letter. Additionally, Roberts noted to President Obama and Secretary Sebellius that CMS is issuing and implementing regulations with limited or no input from those most affected from those regulation prior to their implementation.

Roberts said Sebelius assured him that her agency is going through past and future regulation to streamline, reduce duplication and remove unnecessary regulatory burdens. 

“And if that’s the case then they better shut down for a year, because it’s going to take them that long to get through with it,” he said. “In light of our economy, if you could create a regulatory environment that could promote growth and job creation, it should be the No. 1 priority for this Congress and administration.”

As an example of excessively burdensome regulation, Roberts highlighted the face-to-face rule for conditioning payment for home health services and certain equipment on a face-to-face visit with a physician. “This simply won’t work,” he said of the requirement.

As another example of regulation that needs to chance per S.B. 358, Roberts put the spotlight on DME competitive bidding. The Executive Order as well as S.B. 358 direct Federal agencies streamline, reduce or repeal regulation that does not effectively solve current problems — the key word being “repeal.” If that was indeed the case for DMEPOS competitive bidding, Roberts argued there would be strong argument for repealing or reworking the program.

Roberts said S.B. 358 was partly inspired by the owner/operator of a home health provider he visited in his home state — one of his first healthcare visits as a Senator. The provider shared her frustration with the Senator regarding the vast array of regulatory compliance her business had to maintain.

“She took all the DME equipment off the walls, and put up all the directives that she had received from the Department of Health and Human Services … ,” Roberts recalled. “I said, ‘Well, I’m a college graduate … let me see if I can follow this.’ I got to about the fourth directive and I said, ‘I give up.’ … That day had a very dramatic impact on me.”

Roberts said that meeting put him on a course to defend rural homecare, HME and hospice providers, who he said are “critical” for seniors that often live miles away from family, doctors or hospitals. The Senator noted that those patients often rely on providers as a key medical resource and need access unfettered by regulation that could greatly limit or remove their access to those providers.

“In my role as the Co-chair of the Senate Rural Healthcare Caucus, I can tell you that the stakes have never been greater,” Roberts said in his address. “And you know that. I want you to know that there are some of us that will not let your industry continue to be used as a bank, if you will, for all of the other healthcare priorities.”

About the Author

David Kopf is the Editor of HME Business.

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