One of the first acts of the new Obama administration has been to delay all last-minute regulations passed by regulatory agencies during the final days of the Bush administration.

President Obama’s chief of staff Rahm Emanuel issued a Jan. 21 memo to all federal agencies and departments instructing them to hold all pending rules for 60 days until the new administration can carry out a legal and policy review on each. Such a move has been standard-operating procedure for new administrations since Ronald Reagan took office in 1981, according to the Washington Post.

This could include the $50,000 surety bond requirement, and re-bidding of round one of competitive bidding rule, both of which CMS announced in the waning days of the Bush era. This gives the industry an excellent opportunity to make its voice heard by Congress and the new administration.

Both the American Association for Homecare and the National Association of Independent Medical Equipment Suppliers released statements calling on providers to contact their Representatives and Senators to urge them to ask the Obama administration to rescind CMS’s eleventh hour regulations.

AAHomcare also provided a letter that providers can give to Democratic members of Congress in hopes that they  sign it and send it to Department of Health and Human Services Secretary-Designate Tom Daschle. The text of the letter follows:

Dear Secretary-Designate Daschle:
 
On January 15, 2009, the Centers for Medicare and Medicaid Services (CMS) submitted to the Office of the Federal Register for publication its interim final rule on the durable medical equipment (DME) competitive bidding program. The rule will take effect on February 27, 2009, and is related to the July 15, 2008 enactment of the Medicare Improvements for Patients and Providers Act of 2008 (MIPPA).
 
I appreciate the new administration suspending the eleventh-hour rules and allowing an additional 60 days of comments under the White House memorandum issued January 20, 2009.  The CMS interim final rule was developed without any input by affected parties.  I urge you to take a close look at this rule and rescind it so that all affected parties will have an opportunity to comment on it as a proposed regulation.  
 
I am deeply concerned that CMS has rushed implementation of this rule counter to Congress’ intent when it delayed the competitive bidding program as part of MIPPA. Congress delayed the bid program because it believed CMS haste could lead to disastrous results for the four million beneficiaries impacted under Round One. In particular, MIPPA specified certain reforms that must be achieved after receiving many examples of the serious problems the bid program would cause, particularly its restriction of beneficiaries’ access to quality local providers and initiation of homecare business closures or bankruptcies across the country.
 
The stated CMS rationale in its interim final rule for not electing to pursue the traditional notice and comment rulemaking was that “statutory language was highly prescriptive and it would be redundant to propose a rule to incorporate the words of a provision already contained in statute.” However, we remain concerned that many of the recommended changes designed to prevent future access problems and confusion in the bidding process were not incorporated or even raised for public comment.
 
MIPPA addressed several near-term concerns with the program, but thoughtful and deliberate rulemaking by CMS was clearly anticipated by Congress, given the overwhelming level of Congressional and stakeholder concern during initial implementation. Under the circumstances it would be much more appropriate for CMS to have published a proposed rule, ensuring that comments received during the comment period would be taken into account before any final rule is published.
 
Executive departments within a new administration have traditionally used their authority to postpone or rescind various contentious regulations published in the final days of the outgoing administration. Under this precedent, we hope that strong congressional interest in this program will prompt you and your staff to consider rescinding the interim final rule prior to its effective date.