The American Association for Homecare has retained Washington, D.C. law firm Sidley Austin to review more than 150 complaints from HME providers in the 10 MSAs comprising round one of competitive bidding who say they have been incorrectly refused contracts in the selection process. (See “Round One Refusals” to read more.)
A statement from AAHOmecare says that under the 2003 Medicare Modernization Act, the competitive bidding program’s bidding structure, the number of contractors, the awarding of contracts, and the establishment of payment amounts are exempted from administrative or judicial oversight.
“With that said, arbitrary and capricious activity by a government agency in implementing a regulation is not a tolerated standard of behavior,” the AAHomecare statement continues. “There may be grounds to contest a decision or process by the government if it is based on announced procedures that are then altered mid-course thereby creating disadvantage for those who have shifted their position or developed plans based on the initial framework of rules.”
Bearing that in mind, Sidley Austin is reviewing the supplier selection process to determine if it was consistent with both legal standards and the requirements to which federal agencies must adhere. The association says the first option would be to get CMS to respond and remedy the providers’ grievances, and if those efforts are unsuccessful, then a “different strategy involving litigation may be necessary.”
