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Executing ABNs: When a Patient Refuses to Sign

Wednesday, March 18th, 2015

Andrea Stark


Executing compliant Advanced Beneficiary Notices (ABNs) can be tricky. ABNs are particularly troublesome when you encounter a beneficiary that refuses to sign and accept financial responsibility. In these cases you should generally refuse service to the patient. But what if that is not a viable option? Perhaps the health of the patient would be put in jeopardy if you refuse service or what if the patient already has the equipment and now refuses to sign? In these cases, it may be possible to execute an ABN even if the patient refuses to sign, as long as certain requirements are met.


In order to effectively execute an ABN in instances when the patient refuses to sign, ALL of the following conditions must be met (no exceptions):


  • You must accept assignment on the claim.
  • Your ABN must include the specific reason(s) the claim is expected to deny.
  • The patient must have demanded the service, but still refused to sign the ABN or be held financially liable.
  • The patient’s refusal to sign must be witnessed by the notifier (you) and a second party (this can be over the telephone where the second party is called to witness the refusal while you are on-site).

These requirements are outlined by CMS in Chapter 30 of the Claims Processing Manual (; Section discusses Beneficiary Refusal, Section 50.13.2 Discusses the Refund Requirements applicable to DME providers, and Section 150 further details the implementation of the Refund Requirements on DME claims.


If, and only if, the above requirements have been met are you able to proceed. Be sure to include an annotation on the ABN stating that the patient refused to sign or take financial liability, but still demanded service. This should be signed by both the notifier (you) and the second witness. The notation can be included above the empty patient signature line or in the margins of the ABN. When filing your claim, utilize the GA modifier to indicate that the ABN was presented to the patient. If executed properly, Medicare will hold the patient financially liable for the claim.


We recommend that you send a copy of the notice to the beneficiary along with a notice that they will continue to accrue monthly liability on the equipment up until the date the equipment is returned.  They may return the equipment at any time to avoid future monthly payments.  The customer remains responsible for any monthly payments accrued while the equipment remained in their possession.



HME News Interviews Andrea Stark on Face-to-Face

Friday, March 6th, 2015

Angela Hayden

Andrea Stark talks with HME News correspondent Anna McDevitt about the Face-to-Face rule in this exclusive interview. The Face-to-Face (FTF) rule affects a total of 166 HCPCS and requires that a physician document the face-to-face encounter with the beneficiary and sign off on evaluations performed by nurse practitioners, physician assistants or clinical nurse specialists. The evaluation of the beneficiary must have taken place within the six months prior to the detailed written order. Additional requirements handed down for those 166 codes disqualify the use of verbal orders to dispense equipment and instead subject these HCPCS to the detailed written order prior to delivery (WOPD) requirements as outlined in the Program Integrity Manual.  These provisions are broken into two phases of implementation: Phase 1 – the requirement for the detailed written order prior to delivery and Phase II- the requirement for the face-to-face notes to be the supplier’s possession prior to delivery.  Phase I began enforcement January 1, 2014, and we currently have an undetermined delay in enforcement of Phase II.


Andrea will be partnering with Healthcare Attorney Jeff Baird and Liz Beaulieu of HME News to discuss the newest developments in the Face-to-Face in the March 11th webcast “A Look Ahead: Legal and Reimbursement Headliners and Guidance for 2015”, click here for additional details on this event. Despite the delay in enforcement of Phase II, Andrea Stark recommends an early adoption approach to this rule as discussed in her interview.  Click on the image below to view:




Executing ABNs Not in Person

Tuesday, March 3rd, 2015

Andrea Stark


As a general rule, Medicare expects that Advanced Beneficiary Notices (ABNs) will be issued in-person. However, there are exception protocols for delivery “other than in-person” prescribed in Chapter 30 of the Claims Processing Manual 50.7.2 – Options for Delivery Other Than In Person.(http://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/clm104c30.pdf)


Per the CMS manual, ABNs can be issued via mail, telephone and even via email, BUT the linchpin is that the delivery cannot be disputed by the beneficiary to be considered valid. Having a system that enables you to affirmatively document the notification (and avoid dispute) is the most important component of this protocol. Utilization of tracking mechanisms and/or requiring signature confirmation for mailed notices, delivery confirmation receipts for emailed notices, and recordings of phone conversations can all be reliable tools where appropriate. (Just be mindful that you do this in accordance with state and federal laws as you do not want to run awry of wiretapping regulations).  However, independent data collection will lessen the likelihood that your patient will successfully dispute the delivery of the ABN.


Beyond the delivery of the ABN, the CMS guidance further instructs suppliers to make follow-up attempts to collect a beneficiary signature on the ABN.  These follow-up attempts need to also be documented as part of this protocol.  While not required, we also recommend including a notification that they are responsible for the equipment as long as it remains in their possession; however, if they do not wish to continue accruing future monthly liabilities, they may arrange to return the equipment to avoid any new charges.


When these protocols are followed, the GA modifier should be added to claims for billing purposes once the delivery of information is confirmed (where knowledge is viably transferred and the customer is considered in possession of the information).  Always maintain the documentation of both the initial delivery and follow-up attempts at collecting a signature in the patient’s file should the DME MAC request it. If theses protocols are followed you are not required to have a signed ABN to invoke the protections; however, this protocol is not effective and does not offer protections in scenarios where a supplier cannot confirm the equipment is in use, or cannot make identified contact with the beneficiary. Ultimately, in order to benefit from the ABN protections, the supplier must satisfy the burden of “informing the beneficiary” of their financial responsibility in terms that the patient can understand.


For more details about ABN protections and proper use of the ABN, please join us for an in-depth webinar: “Unraveling the Mystery of the Advance Beneficiary Notice: Harness the Protections and Profit Generating Potential of this Multi-Faceted Form” to be hosted on April 28.


Newest FTF Clarification Opens Doors for DME Suppliers

Monday, August 11th, 2014

Andrea Stark


A new FTF clarification that came through a joint DME MAC publication on August 7th gives providers a new flexibility concerning corrections to Detailed Written Orders (DWOs). The Policy Articles and prior education instructed that a DWO lacking all necessary components required under the FTF is incurable once the equipment has been delivered. Meaning once the equipment has gone out with a non-compliant DWO, the supplier can never receive payment on that equipment.


This latest clarification, however, defines new directives that permit modification and cure to the DWO in a new limited circumstance.  The clarification, posted to the NHIC website here http://www.medicarenhic.com/viewdoc.aspx?id=2760 reads:


“Medicare policy stipulates that a WOPD that is missing an element is not “curable” by a provider (i.e., a provider cannot make corrections to a WOPD) except as outlined below.


I.            If errors in the WOPD are found prior to delivery, the supplier has two options:


A.            The WOPD may be properly amended following the guidance in the Program Integrity Manual (Internet-Only Manual, Publ. 100-08), Chapter 3, Section; or,


B.            A new WOPD may be created and sent to the physician for signature and date.


II.            If errors in the WOPD are found after delivery of the item, the supplier has two options:


A.            If the error is discovered prior to claim submission, the original supplier may recover the delivered item(s), obtain a compliant, complete WOPD and then may re-deliver the item(s) to the beneficiary; or,


B.            If the error is discovered after submitting a claim, the original supplier can recover their items and a new supplier must complete the transaction after complying with all requirements.”


This newest development opens the door for suppliers struggling with errors in the DWO found after delivery. The clarification allows suppliers the opportunity to collect a new compliant DWO after delivery but before billing and still remain compliant with FTF requirements.  In this instance, the supplier would be required to pick-up the equipment issued under the non-compliant order, obtain the new DWO with all necessary components to comply with the FTF rule and then redeliver the equipment, and allow the new claim to bill for reimbursement.


This is a major shift from prior education that opens reimbursement opportunities in the event of proactively identified DWO errors.


CMS has not yet issued information on when the second phase of the FTF rule will be rolled out regarding collection of the FTF notes prior to delivery that will also require NPs, PAs and CNSs to secure a physician co-signature on their notes. Stay tuned to the MiraVista blog for updates on this and other important topics impacting reimbursement.



CMS Announces Next Steps for Competitive Bidding

Monday, July 21st, 2014

Angela Hayden


The gavel has come down on next steps for the Competitive Bidding program as CMS has issued notice for a Recompete of both Round 2 and National Mail Order contracts. The original Round 2 and NMO contracts are in effect until June 30, 2016. Speculation has been circulating concerning what CMS’ next steps for the program would be since the issuance of a request for comment on a nationwide competitive bidding program in February 2014.  While the most recent announcement shifts focus toward the Recompete process, we fully expect the Nationwide Competitive Bidding effort to move forward in the days ahead via a separate notification process.


While most aspects of the program will remain the same for the Round 2 Recompete (R2RC), there were some minor, notable tweaks. For example, Round 2 encompassed a total of 91 Metropolitan Service Areas (MSAs) with 100 Competitive Bid Areas (CBAs) to sub divide the larger MSAs. However, for the Recompete there will be 90 MSAs and 117 CBAs; 16 of the MSAs in R2RC are divided into multiple CBAs to break up the expansive metropolitan areas and to avoid multiple-state bid areas. Additionally, any zip code changes that have taken place since Round 2 implementation have been translated into the R2RC zones.


As for products, the R2RC has been updated to reflect much of what we saw with the R1RC. Many categories have now been grouped rather than broken out for individual bid.  Under the R2RC Oxygen, CPAP, RADs and their related supplies and accessories have been grouped together into the Respiratory Equipment and Related Supplies and Accessories category.  Nebulizers which were grouped into the respiratory category for R1RC, have now been broken out into their own bid category for the R2RC.


Hospital beds and Group 1 and 2 support surfaces have been grouped together under the General Home Equipment and Related Supplies and Accessories category, which now includes three new products (commode chairs, patient lifts and seat lifts).  Under Round 1 Recompete TENS units were grouped into this General product category, however, for the Round 2 Recompete TENS devices and supplies will be included in an independent category for bid.


Walkers, which were previously a stand-alone product category, have now been pushed into the Standard Mobility Equipment and Related Accessories category. This category now encompasses walkers, standard power and manual wheelchairs, scooters, and related accessories. The product category we do not see up for bid in this round which was included with the R1RC is External Infusion Pumps; CMS has indicated that this product will not be bid in the R2RC. See below for a full R2RC product list:


  • Enteral Nutrition, Equipment and Supplies
  • General Home Equipment and Related Supplies and Accessories (hospital beds and related accessories, group 1 and 2 support surfaces, commode chairs, patient lifts, and seat lifts)
  • Nebulizers and Related Supplies
  • NPWT Pumps, Related Supplies and Accessories
  • Respiratory Equipment and Related Supplies and Accessories (oxygen, oxygen equipment and supplies; CPAP devices; RADs; and related supplies and accessories)
  • Standard Mobility Equipment and Related Accessories (walkers, standard power and manual wheelchairs, scooters, and all related accessories)
  • TENS Devices and Supplies

The National Mail Order program will also be subject to Recompete at the same time as Round 2 with no notable changes to that program.


With the announcement, CMS also issued important dates for all suppliers to consider. The bidding schedule will be announced this Fall. During this time, suppliers that wish to participate in the bidding program will begin the registration process to obtain a User ID and password.  The actual bidding for the Recompete will not begin until winter of 2015; therefore suppliers will have roughly a year to prepare for the formal bidding process. Those who are currently contracted under Round 2 will be eligible to participate in the Recompete as long as all requirements are met for bidding. This is a new opportunity for suppliers that were not awarded a contract under Round 2 to participate in the newest round for contracting.


In order to be eligible to participate in the bidding process suppliers must have an accurate record with the Provider Enrollment, Chain and Ownership System and the National Supplier Clearinghouse. All participating bidders must be licensed for the product that they wish to supply in the state in which they are bidding in prior to submitting a bid. Additionally, all locations the supplier intends to offer product from must be accredited by a CMS approved accrediting organization for the items that they provide in a product category.  All other standard bidding rules will apply – more information on those rules can be found on the CBIC website at www.dmecompetitivebid.com.


Newest FTF Development – Audits Begin for WOPD

Friday, March 7th, 2014


On December 3, 2013 CMS posted a clarification on the Face-to-Face rule that rattled the DME community.  The F2F rule, has effectively been divided into two major directives: 1) the requirement for a documented F2F within the six months prior to the written order, and 2) the requirement to secure a Written Order Prior to Delivery. CMS intends to enforce the Written Order Prior to Delivery for claims processed in January 2014.


Prior to the December announcement, enforcement of the Rule was delayed on two separate occasions.  The first was a three month delay in the enforcement from the original July 1, 2013 start date, and the second offered an unspecified delay of enforcement through an unspecified date in 2014.  However, on December 3rd, CMS came forward to indicate that only the F2F provisions were intended for delay and they never intended a delay for the WOPD requirement.  Amid several remaining unanswered questions, CMS and the MACs continue to move this portion of the directive forward.


As of February 18, 2014, we are beginning to see the first of what we except to be many audits as a result of this announcement.  The Jurisdiction C DME MAC posted a notice of a service-specific prepayment review of a number of HCPCS affected by the F2F rule:


  • E0607 – Home Blood Glucose Monitor
  • K0001 – Standard Manual Wheelchair
  • K0002 – Standard Hemi Manual Wheelchair
  • K0003 – Lightweight Manual Wheelchair
  • E0748 – Osteogenesis Stimulator
  • E2510 – Speech Generating Device
  • E2402 – Negative Pressure Wound Therapy Electrical Pump


This pre-payment review is an effort to verify compliance with the Face-to-Face provisions concerning the detailed written order prior to delivery (DWOPD) requirements.  Claims subjected to this audit will be developed for additional documentation including:


  • Written Order Prior to Delivery
  • Delivery Documentation
  • Pertinent patient records
  • Copy of the ABN if used


While this audit was announced by the Jurisdiction C DME MAC, we expect that the other MACs will be following suit in the days ahead.


Face-to-Face Clarifications Rattle DME Community

Monday, December 9th, 2013

Andrea Stark and Angela Hayden


A ground breaking clarification posted by the Centers for Medicaid and Medicare Services to the Face-to-Face Encounter home page on December 3rd, 2013, has sent providers reeling.  The clarification states “The delay of enforcement only applies to the face-to-face requirements in CFR §410.38(g)(3). CMS expects full compliance with the remaining portions of the regulation.” Earlier this year the final rule mandating Face-to-Face Encounters for select items of DME, affecting 166 HCPCS, indicated an effective date of July 1, 2013.  However, CMS issued a delay to October 1, 2013, and then further delayed enforcement until a date yet to be announced in 2014.  This rule not only requires that a face-to-face encounter with a physician, nurse practitioner, physician’s assistant or clinical nurse specialist take place and be documented within six months prior to the detailed written order, but an additional requirement also establishes the necessity to collect a Detailed Written Order prior to delivery (even in cases where a verbal or dispensing order had previously been sufficient).


CMS begun instructing contractors to educate providers on a few key expectations, notably that they are expecting DME providers to follow all of the written order prior to delivery requirements set forth in the rule (dating back to July 1, 2013).


We have discovered that behind the scenes, the Program Integrity Manual has already been updated in several key sections through Revision 468.  This revision cites it was: Issued: 05-31-13; was Effective 07-01-13; and has an Implementation of 07-01-13.  The Program Integrity Manual (PIM) is the instruction manual used by the auditing contractors to enforce Medicare policy.  These citations clearly state they are in effect and implemented as of July 1, 2013 which is quite troubling from a retroactive audit standpoint.  The following are brand new sections that detail CMS expectations about procurement of a written order prior to delivery for items subject to the face-to-face rule:  Section Detailed Written Orders for Face-to-Face Encounter, – Face-to-Face Encounter Conducted by the Physician, – Face-to-Face Encounter Conducted by a Nurse Practitioner, and – Detailed Written Order for Covered Items.


Another curveball popping up in education sessions from some of the DME MACs includes instructions that they expect providers to have signed medical record notes in hand before delivering equipment to comply with the rule (after the delay expires).  If CMS maintains this course, this interpretation will be particularly burdensome to physician practices that send all their documentation out for transcription prior to making the documents available.  The interpretation is also counter intuitive to several critical need products such as oxygen and other items on the list.


Providers and advocate agencies have been reaching out to specifically discuss the impossibility of a retroactive enforcement of these additional provisions due to the inextricable connected nature to the Face-to-Face provisions.  The industry has been told that a Med Learn Matters article is forthcoming, but we are hopeful we can come to a mutual understanding of the key issues prior to the release of formal education on these issues.  Uncertainty still remains regarding several key issues, however, as more information on this topic develops, MiraVista will continue to disseminate key updates.  Please see additional education on this topic on our blog and via our Products menu.


Using Competitive Bidding Modifiers

Friday, July 26th, 2013

Angela Hayden


Competitive Bidding Round 2 is now in full swing and many providers are struggling with the transition. A question that has cropped up repeatedly relates to the use of competitive bidding modifiers. As providers juggle two fee schedules (the traditional fee schedule and Round 2 Single Payment Amounts), understanding when to use the appropriate modifier for claim submission can be a challenge. Below we have pulled an excerpt from our most recent issue of our signature publication Vista Notes that provides a brief overview of the most commonly used competitive bidding modifiers. For comprehensive updates, we recommend that you consider a one-time or annual subscription.


“The KG modifier is used to distinguish between HCPCS codes that can be used with both competitively bid items and non-competitively bid items. Specifically if the item can be billed in multiple categories and it is SUBJECT to competitive bidding and therefore should be priced at the single payment amount (SPA), providers should append the KG modifier. The example used by Medicare is an IV Pole which can be used with both Enteral Nutrition (competitively bid) and Parenteral Nutrition (non-competitively bid). When using an IV pole (E0776) with enteral nutrition (subject to competitive bidding), providers should utilize the KG modifier to signify that it is for use with a competitively bid product. Similarly if a leg rest is used with a standard power wheelchair (subject to competitive bidding), the KG modifier should also be used.


The KK modifier is the anti-KG modifier. It is also used for supplies and accessories that are used across both competitively bid categories and non-competitively bid categories. Specifically if the item can be billed in multiple categories and it is NOT SUBJECT to competitive bidding and should be priced at the standard fee schedule amount, providers should affix the KK modifier. Therefore, in the above example, the E0776 billed with parenteral nutrition would be billed with the KK modifier to signify that the item is NOT SUBJECT to competitive bidding and is being used with a non-competitively bid product and therefore should be paid at the higher rate. Similarly the leg rests billed with a complex rehab chair should also be submitted with the KK modifier as complex chairs are not subject to competitive bidding.


The KL modifier is used with diabetic supplies to indicate that supplies are furnished via mail order. Effective July 1st mail order is redefined to include “all diabetic supply codes delivered to the beneficiary via any means.” Essentially, any diabetic supply that is not picked up in person at a retail location will be considered mail order. Under National Mail Order, only contracted suppliers will be eligible for reimbursement for mail order supplies. These suppliers must use the KL modifier to denote that supplies were delivered to the beneficiary unless the customer walks in to pick up the supply. (Note: Effective July 1, 2013 due to provisions in the American Taxpayer Relief Act, all diabetic supplies are reimbursed at the same rates/allowables regardless of delivery method. Therefore this modifier does not affect reimbursement rates, but is used to enforce mail order contracts.)


The KV modifier is used by physicians and treating practitioners that are not contracted providers, but will furnish exempt walkers and walker accessories to beneficiaries residing in a Competitive Bid Area (CBA). The KV modifier can only be used with the following list of HCPCS in order to be reimbursed: A4536, A4637, E0130, E0135, E0140, E0141, E0143, E0144, E0147, E0148, E0149, E0154, E0155, E0156, E0157, E0158 and E0159. Again this is used only for physician and treating practitioners providing this equipment to their own patients. They must have a DME supplier number and bill the walker with the corresponding office visit on the same day for proper processing.


The KT modifier is used for traveling beneficiaries. When a beneficiary resides in a CBA but travels outside of that CBA into a non-competitively bid area where they are provided a competitively bid item, that claim must have the KT modifier. Likewise if a beneficiary resides in a CBA and travels to a different CBA, they must be serviced by a contracted provider for that CBA, and the KT modifier must be affixed to competitively bid items. This modifier also applies to Skilled Nursing Facilities and Nursing Facilities that are not located in a CBA but provide competitively bid items, such as enteral nutrition, to a beneficiary that has a permanent residence in a CBA. The KT modifier essentially tells the claims processing system to bypass the expected contracted provider for the home CBA. Claims that are not submitted with the KT modifier in these cases will be denied.”


Competitive Bidding modifiers may in some cases cause modifier overflow, where the claim line limit of four modifiers is exceeded. In these cases, providers are advised to utilize the 99 modifier in the fourth position to indicate that the number of modifiers exceeds the limit. Additional modifiers should then be reported in the narrative or NTE section of the claim. When working with claims that exceed the four modifier limit, providers should prioritize pricing (including competitive bidding) and medical necessity modifiers (such as the KX). Informational modifiers such as LT and RT can then be reserved for the narrative or NTE section of the claim.


Understanding the proper usage of these and other claim components will assist providers in processing claims more efficiently, which will in turn ensure more expedient payment. For additional questions on claims processing or other reimbursement questions please contact our office to schedule an appointment with Andrea Stark for consulting at 803-462-9959 ext.246.


Face-to-Face Enforcement Delayed by CMS Amid Readiness Concerns

Friday, June 28th, 2013

Angela Hayden


(07/31/2013: Updated to correct broken link in the last paragraph and to reflect updates to MLN Matters article 8304)


CMS made some big announcements this week for the DME industry.  Most notable is the delay in enforcement of the Face-to-Face (FTF) regulations set forth in the Affordable Care Act. Originally set to go into effect for new orders on or after July 1st, the enforcement of these regulations is now delayed until October 1, 2013.  FTF affects a total of 166 HCPCS and requires that a physician (with an MD or DO credentials) document the face-to-face encounter with the beneficiary and sign off on evaluations performed by nurse practitioners, physician assistants or clinical nurse specialists. The evaluation of the beneficiary must have taken place within the six months prior to the detailed written order. Additional requirements handed down for those 166 codes disqualify the use of verbal orders to dispense equipment and instead subject these HCPCS to the detailed written order prior to delivery (WOPD) requirements. 


Official education on these requirements has been scarce until recently when CMS issued MLN Matters article 8304 which speaks directly to the necessity of documenting the FTF encounter, but did not speak to the requirement of the WOPD in its original release (it was later updated to clarify those requirements).  CMS cites the concern that some providers are unprepared for implementation and will need additional time to implement the proper protocols for compliance. However, in our opinion, lack of sufficient education on the entirety of the rule for suppliers and physician referral sources is the most compelling reason for the delay.   


It is important for providers to understand that the program itself is not delayed; Face-to-Face regulations will still exist starting July 1st. It is the enforcement of those regulations that is to be delayed until October 1st.  For providers, this means that auditing contractors will not deny claims for compliance with FTF requirements when identifying overpayments for new orders prior to October 1st, 2013.  Providers that are already in compliance with the FTF rule should continue that protocol. Those who have not yet established procedures should work diligently to become compliant by the deadline of October 1st. CMS will expect full compliance of all providers by the October 1st deadline.  


CMS has indicated that it will continue to update information concerning the face-to-face rule via their website at www.cms.gov/medical-review MiraVista will keep you informed as updates are released.  More detailed coverage of the Face-to-Face ruling can be found in our signature VistaNotes publication or in select digital recordings (specifically “New Face-to-Face Requirements Get Finalized for DME: Are you Ready for Implementation” recorded on 02/07/2013)  that can be found on our products page.


Licensing Challenges, Lawsuits and Prospects for Delay as Bidding Implementation Approaches

Thursday, June 20th, 2013

Andrea Stark


MiraVista continues to monitor the situation with contracted providers under Round 2 of competitive bidding.  We have been able to confirm, based on a letter from Marilyn Tavenner to Congressman David Roe from Tennessee, that approximately 30 Tennessee contracts were voided out of 98 awards.  CMS indicates they do not intend on immediately awarding replacement contracts (relying on in-state suppliers and grandfathered suppliers), but will “closely monitor the situation in the state”.


With voided contracts in Tennessee, these providers will not jeopardize the entirety of their CBIC contracts by not having everything in place on the start date of July 1, 2013. While disruptive, MiraVista maintains this is a welcome reprieve.  Most of these providers relied on the licensure database housed on the National Supplier Clearinghouse website when submitting their bids back in January 2012.  The database did not accurately reflect all of the states licensure requirements (specifically for Tennessee).   Most of the providers who received voided contracts were unaware of the additional licensing requirements that also mandate a brick-and-mortar location approved by the state to dispense any medical equipment in that state. These providers were notified by the CBIC on or about April 15, 2013 that contracts had been awarded based on the same, incomplete licensure information contained in the database (and not according to actual state licensure requirements in place at the time of bid submission, as was required by law).  The April letter directed the suppliers to submit a complete 855-S form to enroll a new TN location for their organization.  Submission of the application requires prior licensure approval, accreditation, and surety bonds for the new location. The Medicare application process to enroll a new location takes at a minimum 45-60 days.  All combined, it was an insurmountable feat to get all of this finalized with approximately 75 days’ notice start-to-finish.  Having these “problematic” contracts voided, takes the pressure off the risk of non-compliance and subsequent breach and loss of all other contracts in unaffected states.


We know other states have cited that the CBIC has awarded contracts to providers that do not meet licensure requirements in their state.  What remains to be seen is how CMS will address these other concerns.  MiraVista maintains that this is an increasingly complex issue CMS must contend with.


We believe other contracts will eventually be voided if the licensure requirements were in effect at the time of bid submission where licensure had not been procured by the supplier by the original, May 1, 2012 extension date. This precedent is now established with the Tennessee nullifications.  Yet we do not know how CMS will handle changing licensure requirements where rules change mid-stream.  Will they offer grace periods to allow contracted providers to come into compliance? We have learned that Mississippi now has a regulation similar to Tennessee in that a physical location is required to procure licensure, but the requirement was changed AFTER bid submission closed.


AAHomecare announced yesterday, June 19th that it has filed a lawsuit against the Health and Human Services in conjunction with a Maryland provider.  The lawsuit seeks to stop the program citing the licensing irregularities in other states to include: Colorado, Ohio, Maryland, North Carolina, Tennessee, Virginia and Washington.  We will continue to monitor the progress of this initiative.


We are most hopeful for the prospects of new legislation introduced just last week on June 14th, HR 2375 The Transparency & Accountability In Medicare Bidding Act of 2013.  The bill will mandate a minimum delay of six months for all bidding programs to include Round 2, National Mail Order and Round 1 Recompete.  Round 1 could not proceed until six months after Round 2 resumes.  It would obligate CMS to meet with three auction experts, an economist and an econometrician (collectively an “auction expert team”) for the purpose of an independent review and assessment of the program. The goal will be to address the design, development, adequacy of support for beneficiaries, market fairness, sustainability and functioning of the program.  It disqualifies any current or former CMS employee, contractor or individuals that were involved in the original creation or design of the program from being selected for the auction expert team. CMS will have to cooperate fully and disclose all confidential information related to the program to the auction expert team.  A report to include recommendations for changes must then be submitted to Congress within four months of engaging the auction expert team.


The bill gives us a real opportunity to elicit fundamental change which is desperately needed.  A Dear Colleague letter contained the foundation for the bill’s text.  The letter was signed by 226 Representatives and delivered to CMS on June 13th.  The letter relies on CMS to make the call to delay, but to date, CMS shows no sign that they will consider a delay.  However, if we convert the co-signers on the letter to co-sponsors of the bill, we have a strong chance of getting passage in the house and can begin work in the Senate.  Passage of the bill will mandate CMS to suspend the program.  This could move quickly, but will not be complete in the two weeks before the program start date of July 1, 2013.


We cannot accept minor band-aid fixes that do nothing to address the unintended consequences of conducting a flawed auction program.  The current program has forced unnatural market trends.    This has produced so many shifts in geographical presence, product offerings, state licensing complexities, and unsustainable rates all in the interest of “survival” and not “true competition”.  Auctions like the Market Pricing Program can work for DME as set forth in HR1717, but competitive bidding in its current form will fall far short.



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