Industry Legislation Poised to Lapse

As 113th Congress draws to a close, industry advocates set strategy for early 2015.

• By David Kopf
• Dec 18, 2014

Just as the industry was seeing some steady progress in both its legislative efforts to reform competitive bidding and CMS’s audit program, the 113th Congress is rapidly drawing to a close, and it looks certain that the industry will have to pick up where it left off at the start of a new year and a new Congress.

Where audits were concerned, H.R. 5083, known as the Audit Improvement and Reform Act (aka, the AIR Act), continued to pick up co-sponsors in the House, bringing the total number of lawmakers officially supporting the legislation to 45. The AIR Act was introduced into the House by Renee Ellmers (R-N.C.) and John Barrow (D-Ga.) in order to address key problems with Medicare’s unchecked audit system by boosting transparency within the program; providing better education and outreach; and rewarding suppliers that have low error rates on audited claims.

On the competitive bidding front, H.R. 4920, otherwise known as the Binding Bids Bill, continued to push forward up until the final moments of 2014, advancing to a total at 68 co-sponsors. Introduced by Reps. Pat Tiberi (R-Ohio) and John Larson (D-Conn.), the Binding Bids Bill would require bidders to have special surety bonds forcing them to hold to their bid amounts. This addresses the major flaw of competitive bidding’s non-binding bids: that it lets companies engage in the sort of low-ball bidding at prices that some bidders have no intention of honoring. The surety bond forces them to live up to their obligation.

Newfound Senate Support

The latest triumph for the industry was much needed support in the Senate. Sens. Rob Portman (R-Ohio) and Ben Cardin (D-Md.) have launched S. 2975, the Medicare Competitive Bidding Improvement Act (MCBIA) of 2014, companion legislation to H.R. 4920, which Congressmen Pat Tiberi (R-Ohio) and John Larson (D-Conn.) introduced in the House in June

The simple, straightforward bill would have helped deter speculative bidding in Medicare contract auctions by making all bids binding and require proof of licensure for the next rounds of bidding. There are three key provisions in the bill:

• Providers will need to prove licensure before they submit bids.
• Bidders would be required to obtain a bid bond.
• Bonds will be forfeited if the bidder declines the contract and his bid was at or below the bid price.

 

The full text of the bill is available at http://1.usa.gov/1wKeeYT.

“It’s important that we’re taking steps to ensure seniors have access to the medical supplies they rely on,”  Portman said when the bill was introduced. “This legislation will increase transparency and fairness in the bidding process, promote competition and ensure seniors have increased access to quality medical supplies.”

“Good governance and good business practices are both founded on transparency,” Cardin added. “Our bill would increase transparency in CMS bidding to help those reliant on affordable medical supplies as well as the small business that supply them. I thank Sen. Portman for joining me in moving forward this commonsense, bipartisan legislation to help better serve the American people.”  

This was an important move forward for the industry, which had been fighting hard to gain a foothold in the upper chamber.

Setting the January Strategy

Last week, the industry’s efforts focused on adding the legislative language of funding bills being pushed through Congress in December in order to fund the government through the fiscal year and prevent a government shutdown. On Dec. 15, the $1.1 trillion “Cromnibus” spending bill passed without industry legislative language attached, but it did contain language recognizing that the two-year-plus delay of assigning administrative law judges to Medicare audit appeals was a problem that needed to be addressed.

This leaves the industry with a tough challenge where competitive bidding is concerned: can it get its legislation passed before bidding starts on the Round Two re-compete on Jan. 22?

“Our goal is to get binding bids passed prior to the opening of the bid window,” says Cara Bachenheimer, senior vice president of government relations at Invacare Corp. “… We’re working every angle we have to get these bills through. There are standalone opportunities; there are attachment opportunities. Nothing is set at this point.”

“We have talked to our [returning] champions, and we believe there is a small window at the beginning of 2015 to get [H.R. 4920 or S.2975] through and incorporate it into the Round Two re-compete process, prior to the bid window opening on Jan. 22,” says Seth Johnson, vice president of government affairs for Pride Mobility Products Corp. “But clearly, timing is going to be of the essence. It would be extremely aggressive to get binding bids through the legislative process, considering that it would have to be reintroduced and passed.”