Industry Debates Merit of a Single Word

While H.R. 4229 language fails to make budget bill, lawmakers ‘encourage’ CMS to adopt rural relief IFR. The question is, what does that word actually mean?

• By David Kopf
• Apr 05, 2018

Since Congress passed of $1.3 trillion omnibus spending package, industry debate has fixated on a single word: “encourages.”

The reason for that is while the budget bill didn’t include legislative language from H.R. 4229, the legislation was accompanied by a recommendation that CMS implement a critical interim final rule (IFR) that might accomplish rural relief.

Specifically, a Conference Report accompanying the bill included one passage under the heading Durable Medical Equipment: “The agreement encourages CMS to promulgate the pending Interim Final Rule entitled ‘Durable Medical Equipment Fee Schedule, Adjustments to Resume the Transitional 50/50 Blended Rates to Provide Relief in Non-Competitive Bidding Areas.’”

That IFR, which has sat in limbo at the Office of Management and Budget since August, would resume the 50/50, blended fee schedule for rural and non-bid areas that was in effect during the phase-in of national bid expansion during Jan. 1, 2016 to June 30, 2016, and apply it to claims submitted between Aug. 1, 2017 to Dec. 31, 2018. It would also exclude home infusion drugs used with HME from competitive bidding.

But whether or not you see that as progress depends again, on your perception of the word “encourage.” Social media was alight with comments undercutting the passage as weak — a humble, hat-in-hand request from lawmakers to an ultra-powerful agency.

While the world “encourages” might have prompted some to throw up their hands in frustration, others were crossing their fingers that the industry might have another way to secure some rural relief.

Speaking to attendees at the American Association for Homecare’s Washington Update at Medtrade Spring on March 28, Jay Witter senior vice president of Public Affairs for the association said that “encourages” is a “nice way of saying ‘get it done,’” and is about the strongest way Congress can tell CMS to adopt the rule, given that the legislative branch can’t mandate that the agency do so.

“We’re doing everything to take that one sentence and get you relief,” Witter explained. “They want you to give up. We can’t give in. We can’t let them get away with this. Demand relief from your member of Congress.”

Echoing Witter’s sentiment, Cara Bachenheimer — recently senior vice president of Government Relations for Invacare and now working to open a new Washington, D.C. legislative office for industry law firm Brown & Fortunato, P.C. — said during a Medtrade Spring presentation that “encourages” is “actually a strong word for a conference report, due to separation of powers.”

Regarding how the industry should proceed, AAHomecare President and CEO Tom Ryan said the language gives the associations and industry advocates a new reason for engaging with regulators and encouraging them to implement the IFR. It also strengthens the lobbying case for H.R. 4229.

“We will not go away until we get across the finish line,” said Ryan. “We are not down, and we continue to fight. At the end of the day, we did get something. We are on offense again.”