The H.R. 3229 Fixer
If you have siblings, you probably at some time fell victim to that childhood pastime of being tormented by a brother or sister as you both sat in the back seat of the car. Eventually, your dad or mom turned around from the front seat and ordered you not to hit each other. At which time your sibling extended a finger into your airspace, moving it closer and closer until you bawled for Mom/Dad. And your sibling, a picture of innocence, protested, “But I’m even not touching her!”
That was probably one of your first experiences with the letter of the law vs. the spirit of the law, and with any luck, you and your sibling became best of friends once you grew past such juvenile activities. Happy ending!
So — what’s going on with the attempt by the Centers for Medicare & Medicaid Services (CMS) to apply competitive bidding prices to complex rehab technology (CRT) wheelchair accessories that have been legally excluded from the program?
Long story short, the Medicare Improvement for Patients & Providers Act (MIPPA) of 2008 specifically excluded CRT from CMS’s Medicare competitive bidding program. There are several very good reasons why, ranging from the customized nature of CRT equipment to the tiny percentage of Medicare beneficiaries who even use CRT.
This should have been the story’s happy ending. But no.
Remember how your sibling held his hand millimeters from your face while proclaiming that he wasn’t even touching you?
CMS is doing the grown-up equivalent: “MIPPA said we couldn’t competitively bid CRT, so we’re not. We’re just going to take prices derived from competitive bidding and attach those prices to your CRT products. See? We’re not technically competitively bidding CRT!”
Oh, come on. Obviously, MIPPA’s intent was to exclude CRT from competitive bidding and to keep a completely inappropriate pricing system away from these highly individualized seating & wheeled mobility components. MIPPA’s intent was not to exclude CRT from one step of the process so it could be strangled later down the line.
And CMS knows it. They’ve got to know MIPPA’s intent, and that the right thing to do is honor the intent rather than search for a loophole until you find one.
After 100+ members of the U.S. House sent an April letter to CMS in essence saying, “You know what we meant,” CMS feigned innocence. So now we have H.R. 3229 (thanks to Rep. Lee M. Zeldin, R-N.Y., for the introduction), which may be the shortest bill you ever read. Even with ceremonial language, the bill is just two pages long. I guess it doesn’t take much room to shut a loophole. The bill literally omits one conjunction, adds another to a different clause, and ends with a sentence that says, “Quit messing around! Don’t use competitive bidding prices to determine Medicare allowables for accessories used on CRT wheelchairs!” (I’m paraphrasing.)
You know how your mom or dad didn’t buy the “I’m not even touching him” defense? Neither will Congress when it comes to CMS’s loophole dance. As of this writing, CRT advocates are working toward a second knock-it-off letter, this time from the Senate. Meanwhile, advocates are hoping for swiftly massing support for H.R. 3229, since it’s a “technical correction” that really breaks no new legislative ground.
How much easier it would be if CMS just sat nicely on its side of the back seat instead of going out of it way to pick on a category that makes up a minuscule fraction of its Medicare budget. Let’s get our reps signed onto H.R. 3229 so we all can get on with bigger and better things.
This article originally appeared in the September 2015 issue of Mobility Management.