U.S. Supreme Court Shuts Down Bid Lawsuit

The U.S. Supreme Court refused to hear a petition that was geared to prohibit CMS from awarding Competitive Bidding Contracts to winning DME Providers until it complied with rule making processes.

The orginal Lawsuit was filed by the Texas Alliance for Home Care Services (TAHCS) against CMS and the Department of Health and Human Services in 2010.  Barry Johnson, the Executive Director of TAHCS said “It’s hard when they tell you ‘no’ from the day you file it until the day they kick you our the door”

The suit claimed that CMS had violated federal statues that require the agency to be transparent regarding the financial requirements that DME providers must meet under the bidding program and to provide an opportunity for public comment.

The D.C. Court of Appeals had ruled that DME statutory provisions precluded it from reviewing the issue which led TAHCS to appeal to the Supreme Court.  Johnson stated “The Government continues to maintain that they can ignore policy…. It has Become a political issue because they don’t want to interrupt competitive bidding.  They don’t care about financial stability.”

A rising concern over the outcomes of Round 2 payment amounts has led many to believe that the rates are not sustainable.  The financial stability for products that have seen an average cut of 45% and some as high as 72% is in question.

The Center for Regulatory Effectiveness (CRE), a watchdog group, filed the first of several Freedom of Information Acts (FOIA) requests seeking information about the process within the bidding program.  CMS has yet to acknowledge the receipt of any of these requests.  Additionally, the CRE has stated that it could file a Data Quality Act petition against CMS.  The Data Quality Act requires federal agencies to use accepted scientific methods when making regulations, something that the CRE, in addition to key industry stakeholders say CMS has not done.