Annual Advisory Board Roundtable

Whither Round 2021?

The next round of competitive bidding is just around the corner, but the industry has experienced complete radio silence.

Introduction: Each fall, members of HMEB’s Editorial Advisory Board share their time and expertise to examine the various factors that will impact providers in the coming months. In this installment, Cara Bachenheimer, Lobbyist/Government Affairs for industry law firm Brown & Fortunato, P.C., discusses the fact that neither CMS nor CBIC have released any new details on Round 2021:

At the time of making these comments, we have no information from CMS about whether or not the bidding program is actually going to start when it is scheduled to start on Jan. 1, 2021. There’s obviously, been a huge amount of lobbying to get CMS to push the pause button on the program, given the pandemic and given the significant role that oxygen is playing in taking care of COVID-19 patients.

But this is a time when we would normally expect the CBIC to be issuing information about the single payment amounts, and in another month to two months, we’d know who the bidders are. But it’s been, literally, radio silence from CMS in terms of next steps. And in conjunction with that, we don’t have a proposed payment rule.

This rule was originally finished by CMS and was sent over to the Office of Management Budget (OMB) in March, right before the pandemic. And we were expecting a proposal to come out early July. Then we’d have a 60-day comment period. And then the government comes out around Nov. 1 with a final rule.

We still don’t have any kind of rule, and the interesting thing about that is whether that’s related to Round 2021 being paused beyond January 2021, or if there’s difference in the payment rates. Now, obviously, the CARES law payment rates — the higher rate that Congress legislated early this year at the end of March —  are in effect for the duration of the public health emergency. So any payment rule that CMS puts out is essentially, overridden. The statute takes precedence over CMS, so CMS don’t necessarily have a say in the matter as long as the public health emergency is around. But we don’t know how long that’s going to last.

At this point, it’s really too late for CMS to put out a proposed rule with a 60-day comment period. If they even came out with it today, the 60-day comment period would be end of November. They could do a 30-day comment period, which they did for some of the rules that they were laid off, but that means end of October. And then they would have to turn around a final rule to make it effective Jan. 1. Or, they could do an interim final rule. So there are processes, but right now it’s a big question mark.

About the Author

Cara C. Bachenheimer, Esq., is an attorney with the Health Care Group at Brown & Fortunato, a law firm with a national healthcare practice, where she heads up the firm’s Government Affairs Practice. Her work focuses on lobbying Congress, the Administration, and federal agencies, such as CMS, FDA, IRS, and FAA; as well as regulatory compliance work. She can be reached at (806) 345-6321 or

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