Debate over a proposed state medical supply program continues in Ramsey County District Court. Opponents of the Preferred Incontinence Products Program (PIPP) are fighting a motion to dismiss their legal challenge to the program. The motion was to be heard October 11, just after Access Press went to press.

The legal move dismays the members of the Midwest Association for Medical Equipment Services and Supplies (MAMES), and many people who rely on incontinence products. While bulk purchasing is touted as a potential cost savings, limits are opposed by those who rely on incontinence products. Potential health effects of lower-quality products are just one red flag raised. Another is that such a purchasing program, and limits to products, goes against the movement toward person-centered care, and for not supporting access to choice.

MAMES filed suit against the Minnesota Department of Human Services (DHS) and Human Services Commissioner Emily Johnson Piper to block the purchasing program. On August 24 Ramsey County District Court Judge Leonardo Castro filed a temporary restraining order against the program. That same day DHS withdrew the request for supplier proposals, which PIPP foes see as a maneuver to restart the purchasing program in the future.

Now the state wishes to dismiss the MAMES lawsuit with prejudice, meaning that it could be more difficult to act in the future. The state also wishes to dismiss the temporary restraining order.

“Current law directs DHS to institute this program,” state officials said in a statement. “The court’s order has impacted this without regard to legislators’ wishes.”

PIPP was supposed to start September 1. No new bid process has been announced, or new start date set. If a state program is implemented, it could affect about 14,000 people.

Rose Schafhauser, executive director of MAMES, said the association is “absolutely concerned” that DHS would like to reissue a similar or comparable request for proposals this year, before state lawmakers have the opportunity to repeal the PIPP statute during the 2019 legislative session. “As Senator (Jim) Abeler said in an August hearing on the program, it’s time that DHS let it go,” said Schafhauser.

MAMES is cautiously optimistic that the court will deny the state’s motion, Schafhauser said. “As a requirement of granting MAMES its temporary restraining order, the court already found that MAMES demonstrated a substantial likelihood of success on the merits,” she said. “That finding means that DHS faces an uphill battle to convince the court to dismiss our action. If the court were to dismiss our action with prejudice, however, MAMES is prepared to continue the fight before the judiciary and the legislature until DHS abandons this unnecessary, unworkable program.”

The purchasing program got its start during the final hours of the 2017 Minnesota Legislature. Suppliers and disability community advocates were outraged to learn that the language creating the program was slipped into a bill during the final hours of a special session. No hearings were held during the regular session to discuss such a program.

During the 2018 session, a program repeal made its way through the process. But repeal language was wrapped into a much larger bill with many other programs and initiatives, despite warnings from Gov. Mark Dayton that he would veto such bills. The veto happened, the repeal effort failed and PIPP is still in place.

DHS contends that the MAMES lawsuit should be dismissed for two reasons. One is that MAMES lacks jurisdiction over the legal matter, since the original request for proposals has been withdrawn. The second is that MAMES failed to state a claim upon which relief can be granted.

In its motion, DHS makes a number of legal and technical arguments to have the lawsuit dismissed. One is that because the program, was withdrawn, the issue is no longer a “live controversy.” One sticking point in the debate will be when DHS withdrew the request for proposals.

Another section of the motion states that “… Plaintiffs’ members are operating in a highly regulated industry and were aware through existing law, or should have been, that the commissioner could utilize a competitive bidding process, or impose reimbursement limits, and that medical assistance payments to providers would conform to the limitations set forth in the program implemented by the commissioner.”

DHS also states that medical supply providers are free to contract with the product suppliers of their choice, for non-Minnesota Health Care Program clients fee-for-service clients. It’s argued that providers could obtain waivers for clients who need a special product.

The motion also states that MAMES members “could not reasonably expect to be free from rate setting and purchasing restrictions in the highly regulated field of medical assistance.”

The potential to jump-start PIPP has renewed fears of the state starting other volume purchasing programs for personal care products. “Before DHS is allowed to commence a new program to volume purchase other medical supplies and equipment, DHS must demonstrate that its new program will be ‘effective, economical, and feasible’. We hope that our incontinence product litigation and DHS’s challenges with PIPP will underscore the difficulty of implementing further volume purchasing programs,” said Schafhauser. “If DHS does undertake another volume purchase program for some other product, MAMES will be willing to review DHS’s proposal in the hopes that DHS will seriously consider MAMES input to avoid yet more litigation.”