Stakeholders Seek to Elevate CMS Capped-Rental Discussion

Following a disappointing final rule that moves some 50 wheelchair-related HCPCS codes from the routinely purchased to the capped-rental category, stakeholders find themselves once again looking to take their argument to a higher level.

Complex rehab technology (CRT) adult manual tilt-in-space wheelchairs (E1161) and pediatric wheelchairs (E1232 to E1238) are among the products that the Centers for Medicare & Medicaid Services (CMS) will soon start renting from providers rather than purchasing outright.

That decision comes despite CMS acknowledging it received 172 comments during the public comment period, and that those comments came not just from manufacturers and providers of assistive technology, but also from clinicians, consumers, consumer advocacy organizations, and even from Veterans Affairs.

The National Coalition for Assistive & Rehab Technology (NCART) submitted comments in response to CMS's proposed rule, and will now be among the organizations working to express their concerns at a higher level, according to NCART Executive Director Don Clayback.

CMS Uses 26-Year-Old Purchasing Data

Among stakeholders' objections is that CMS chose to use purchasing data from 1986-87 to determine whether an item remained in the routinely purchased category or would move to the capped-rental category.

CMS examined the HCPCS codes in question - or, in the case of pediatric wheelchairs, examined the HCPCS codes being used for pediatric chairs back in 1986-87. If in 1986-87 the item was purchased by Medicare less than 75 percent of the time, the item was moved to the capped-rental category. Items purchased at least 75 percent of the time remained in the routinely purchased category.

"We're very disappointed with the complete lack of attention to the comments made by all the stakeholder groups," Clayback said in an interview with Mobility Management. "They definitely got our letters and heard what we were trying to tell them, but their basic message was, 'We're going to rely on 26-year-old data, and we're really not going to listen to the concerns of people who are impacted by this.'"

Using such outdated data was a problem for the adult tilt-in-space wheelchair code, Clayback says, because - as stakeholders pointed out to CMS in their comments - tilt-in-space technology didn't exist in 1986-87. Since those types of wheelchairs didn't exist in 1986-87, they of course were not purchased at least 75 percent of the time. So they were automatically relegated to the capped-rental category.

"[CMS is] saying the only thing they can use is 26-year-old data to make these decisions," Clayback said. "You would've thought the response might have been, 'We understand that it may not be the right approach, so we're going to delay any action in this area, and we're going to work to create a more rational way to classify capped-rental items.'"

But that didn't happen, so 78 HCPCS codes - 50 of them related to wheelchairs - will be moved to the capped-rental category in 2014. Items not involved in Medicare's round 1 recompete or round 2 competitive bidding program will be classified as capped rentals starting April 1, 2014. Items in the competitive bidding program will be reclassified as capped rentals after their respective competitive bidding terms expire.

Escalating the Argument

Since CMS has published its final rule, Clayback says the industry will now channel its energies in new directions.

For instance, he says, Congress has spoken up before to say that CRT is fundamentally different from DME - that CRT is used by consumers with serious, long-term and permanent medical conditions, and that CRT is custom built and fitted to meet individual consumer needs.

"In our mind, Congress weighed in back in 2010 when they looked at power wheelchairs and said, 'We're thinking of making all power wheelchairs rental,'" Clayback said. "Our community pointed out the problems with doing that to complex rehab, and Congress said, 'All right, we're going to make standard power wheelchairs capped rental, and we're going to make complex rehab power wheelchairs routinely purchased.' We mentioned that in our comments, but that's another example of where [CMS] completely ignored that comment."

In fact, CRT seems completely at odds with CMS's own description of capped-rental equipment.

As Clayback said, "What's the purpose of this capped-rental category? The capped-rental payment system is designed to manage expenses and to cover things that are of a short-term need. That short-term need is the focus.

"As a layperson, you'd say, 'Oh course, if someone is only going to need something for four months, you shouldn't be buying it, that doesn't make sense.' I think everybody, including the people that commented, would agree with that. But that's the whole crux of the argument, that [CRT consumers] need this equipment for a permanent [condition], and also, the equipment is tailored to their individual needs."

Clayback says those factors led Congress to exclude CRT wheelchairs from the capped-rental category: "If you go back to the power wheelchair decision that Congress made, that was the primary differentiator for standard chairs that aren't as customized to the needs of the individual -- they can be rented. But that doesn't apply when it comes to complex rehab."

He added that he believes CMS has received plenty of education on CRT from the industry.

"As CRT advocates, we've been doing a lot of education over the years about what complex rehab technology is," he noted. "We've been doing that on the federal level, on the state level and the payor level. While I do think more education needs to be done in certain segments, I feel comfortable saying that CMS does understand what complex rehab technology is. I don't think it's a matter of us giving them more education. They don't want to take that understanding and use it when they're creating these policies. They've chosen not to use that understanding to amend their current policies."

And it's critical, Clayback said, to understand CMS's perspective on this.

"In my mind, I'm kind of redefining what is creating these problems, and I don't think it's a lack of education with CMS," he said. "I think we need to redefine the issue, which is not that CMS doesn't understand what CRT is, but that they don't want to be responsive to the needs of those individuals, and they don't want to incorporate that understanding when they're doing things like this, which to me is a significantly different issue.

"What is the agenda here? Is the agenda to make these changes to eliminate access to specialized equipment? In other words, everybody's just going to get a standard wheelchair and [CMS doesn't] want to deal with specialized equipment?"

If that's the reasoning behind CMS's new policies - that CRT is just too difficult, costly and time consuming to offer to Medicare beneficiaries - Clayback added, "I would argue that's CMS not living up to their obligation, which is to provide appropriate coverage to the Medicare beneficiary. That's where you get into this bigger question of how they're carrying out their responsibility to both protect the program and to protect the beneficiary."

The next steps, Clayback said, is communicating stakeholders' concerns to Department of Health & Human Services Secretary Kathleen Sebelius, and "We're going to have to go to Congress and talk to them about stepping in."

In a Dec. 10 bulletin to NCART members, Clayback identified four comments that NCART made during the proposed rule comment period: Using such old purchasing data to establish product categorization is  "completely unreliable and inappropriate and is inconsistent with Congressional intent"; CRT should be classified as routinely purchased equipment; CMS's estimated cost savings are overestimated; and new policies need to be set in place to identify routinely purchased DME.

In addition, Clayback said, "We will amend our separate benefit category legislation to address this, that's a very likely option."

Currently, H.R. 942 and S. 948 are bills in the U.S. House of Representatives and U.S. Senate, respectively, aimed at establishing a separate Medicare benefit category for CRT.

Clayback said NCART and other stakeholder groups would be meeting with those bills' co-sponsors in Congress to explain the capped-rental ruling and ask for their support.

About the Author

Laurie Watanabe is the editor of Mobility Management. She can be reached at lwatanabe@1105media.com.

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