Competitive Bidding:
2 COURT CASES COULD PUT BRAKES ON BIDDING RULE
Published on Mon Oct 01, 2007
Lack of protection for small suppliers highlighted in upcoming Cleveland case.
Don't miss the new developments in legal wrangling concerning Medicare's new competitive bidding program: Your ability to bill Medicare could depend on their outcomes.
Here are the latest happenings in two court cases seeking to halt or delay competitive bidding: • Case 1: A Texas lawsuit with the potential to halt the implementation of Medicare's competitive bidding program is wending its way through the federal legal system.
Background: The Texas litigation, filed June 12 in the U.S. District Court for the Northern District of Texas by Amarillo, TX-based law firm Brown & Fortunato, challenges the constitutionality of competitive bidding and seeks a permanent injunction that would stop CMS from ever implementing it. The first phase of competitive bidding for Medicare-covered durable medical equipment, prosthetics, orthotics and supplies (DMEPOS) is slated for implementation in April 2008.
New development: In October, the plaintiffs filed a response to a "motion to dismiss" from the federal government. "The government's move wasn't anything unexpected," attorney Jeffrey Baird of Brown & Fortunato tells Eli.
Specifically, the Centers for Medicare & Medicaid Services is asking the judge to dismiss the case based on the grounds of standing, ripeness and statutory preclusion of review, explains Baird.
In simple terms, that means they are "denying everything," says Baird.
Next steps: The judge could now grant or deny the motion to dismiss--or ask for verbal input from both sides. He's likely to make one of those moves in the next month, says Baird.
The case will progress no matter which call the judge makes. If he grants the motion to dismiss, the plaintiffs will appeal to the U.S. Court of Appeals, Fifth Circuit, says Baird. • Case 2: Attorneys in Cleveland, OH are about to file the second major case against Medicare's DMEPOS competitive bidding plan.
A firm date for filing the lawsuit has yet to be set, attorney Amy Leopard of Walter & Haverfield tells Eli. But action should unfold soon. "We are optimistic that the suit will be filed shortly," says Leopard.
The case differs from the Texas case but compliments it, says Baird. The focus in the Ohio case is not constitutionality, but inadequate protections for small businesses, says Leopard. Waterloo, IA-based advocacy group Last Chance for Patient Choice will file the lawsuit in the U.S. District Court in the Northern District of Ohio.
The Ohio case springs from the idea that CMS has not done all that Congress intended to "minimize disruption to small suppliers," says Leopard. In addition, it concerns the need for more transparency in the bidding process, so that the public knows what information CMS is considering in granting contracts.
"The patients who have volunteered for this lawsuit [...]
