"Behind-the-Scenes" H.R. 6331 Effort Clarifies Accessories Funding
While most H.R. 6331 conversation centered on its big-ticket issues -- the "doc-fix," an end to competitive bidding as we know it, a competitive bidding rehab carveout - this bill also included a number of other components related to DME. One of those components involved wheelchair accessories and how they might be included in that 9.5-percent funding cut "pay for" that was part of the price tag to delay and reform competitive bidding.
As a result of what he described as "much behind-the-scenes lobbying," The ROHO Group's Executive VP Tom Borcherding explained in a memo sent to NCART board members that H.R. 6331 included "language added to the legislation that specifies that seating and other 'related accessories' will only be eligible for the 9.5-percent payment reduction when they are supplied to Medicare-eligible beneficiaries using power wheelchairs. This is an important distinction, since it means that seating and other accessories are not subject to the reduction when supplied to users of manual wheelchairs or other products not included in the 10 product categories that will see an allowable reduction beginning on January 1, 2009."
NRRTS Executive Director Simon Margolis sent Borcherding's memo to NRRTS members and Friends of NRRTS on July 16, the day after H.R. 6331 became law thanks to a Congressional override of President Bush's veto.
David McCausland, The ROHO Group's senior VP of planning & government affairs, said realization that such a clarification for wheelchair accessories could be needed came about in part because of the way competitive bidding was handling the diabetic supplies product category.
In a July 17 interview with Mobility Management, McCausland explained, "The only qualifier (the Centers for Medicare & Medicaid Services, aka CMS) had for that 9.5-percent cut is they had diabetic supplies, but only if furnished through mail order. Obviously, what they're saying is that a diabetic supply that's done through mail order gets a 9.5-percent cut, but a diabetic supply that is bought directly at a pharmacy does not get a 9.5-percent cut. So the concern was that was the only qualifier: There was a 9.5-percent cut (for all other first-round categories), except for diabetic supplies, where the 9.5-percent cut was only for the mail-order ones."
McCausland said that singular exception raised a big concern: "What does this mean for those other products that were included 'sort of' in competitive bidding? The 'sort of' items were the wheelchair seating and accessories, because they were included in competitive bidding when they were associated with a power wheelchair, but they weren't being included when they were with a manual wheelchair. But the legislation had nothing to clarify that.
"So for wheelchair seating and accessories, I'm guessing 20 to 25 percent of the business is associated with power wheelchairs, but the vast majority of the business was associated with manual wheelchairs. So I was really concerned that you had these products that were really only included in competitive bidding as CMS told us for the convenience of the beneficiary so they could make sure that wherever they got their power wheelchair, they could also get their accessories -- and we're going to take this 9.5-percent cut across the board, even when (the accessories) are attached to a manual wheelchair."
Concerned that all wheelchair accessories would be trapped in a gray area and be made part of that 9.5-percent payment cut, McCausland said, "We raised the issue loud and long to say this just isn't fair. And thankfully, we were able to get the right people to recognize that, the right people to go to bat for us to say there's a fairness issue here, and to get this partial sentence, this technical correction done."
When H.R. 6331 became law on Tuesday evening, wording about the 9.5-percent cut explained that it was "including related accessories, but only if furnished with such items and services selected for competition."
McCausland praised the involvement of the American Association for Homecare's Walt Gorski and Tim Trysla of the Washington law firm Alston & Bird for their hard work on getting that phrasing included. He also credited "understanding, reasonable, compassionate congressional staffers that basically saw this as an issue of fairness and equity and were willing to help get it done."
McCausland said, "That little clause - (on) page 189, lines 17 through 19 (of H.R. 6331) -- got added in (a) very short window of time to define that those accessories should only see the cut when they're associated with the items that were selected for competition." He said the phrasing was added after the bill was drafted, but before the House passed it "less than two weeks later."
And now that those wheelchair accessories will not be part of that 9.5-percent cut if they're not on power chairs, McCausland believes there's an opportunity for those accessories to receive a CPI increase in payment in 2009.
"So we've protected the current allowable for accessories when it relates to manual wheelchairs, and we may also actually see an increase to the allowable for accessories with manual wheelchairs if in fact we can get everybody to agree that they eligible for the CPI increase in 2009," McCausland says.
He cautions that "This is all very, very new," and that "the next few months will determine if CMS (sees) it the same way." Still, McCausland sees reason to be optimistic now that the clarification is law.
"Now as the dust starts to settle and we've got a few months, we've got to make sure that CMS doesn't decide it wants to go off with a totally different interpretation," he said.