Could changes at the federal level cause harm to people with disabilities who need specialty medical equipment? That is the concern centered on a ruling last month in the case of Key Medical Supply Inc. versus Kathleen Sebelius, Secretary of the United States Department of Health and Human Services, and Marilyn Tavenner, Acting Administrator of the Centers for Medicare and Medicaid Services.
U.S. District Court Judge Donovan Frank granted the defendants’ motion to dismiss the case, for lack of subject manner jurisdiction. He also denied the defendants’ motion for summary judgment and a motion by Key Medical to seek a temporary restraining order.
But he also expressed concerns about the federal government’s new competitive bidding program. The program affects that who can supply certain medical equipment and how much those providers can be paid by Medicare. “While the decision in the motions is supported by law, the Court is deeply concerns about the unjust consequences of its order,” Frank wrote. Frank stated that while he lacked authority to rule on the program’s legality, the federal government is ignoring the harm it could be inflicting on people with disabilities.
“This is a sad day for those who believe that when a judge adheres, evenhandedly, to his or her oath of office, justice will prevail and the public interest will be served. To the extent that a civilized and democratic society is measured by the manner in which it treats and protects its most vulnerable members, it has failed today.” Frank also stated that the government appears to be indifferent to the fact that people with disabilities have a need for the custom-fit low entereal feeding tube, known as a G-tube. Other types of feeding tubes are more susceptible to accidental removal.
Frank said if the court had jurisdiction, it would likely conclude that the federal government’s action is arbitrary and capricious. But Congress has intentionally prevented courts from reviewing the program.
The ruling not only disappoints Key Medical Supply Inc., a Shoreview-based company, it has implications for suppliers throughout the nation.
“Half of Key Medical Supply’s supply revenue is at risk,” company’s lawyer, Samuel Orbovich of Fredrikson & Byron, told Thomson Reuters’ News and Insights Blog. Orbovich said the company may have to refocus its business as a result of the new program. Filing an appeal with the 8th U.S. Circuit Court of Appeals is also an option.
Key Medical supplies a wide range of specialty medical equipment. The company filed suit against the federal government in March 2012, in U.S. District Court. Key Medical is objecting to a new competitive bidding program that takes effect in July in the Twin Cities. The program has been phased in elsewhere across the United States, and is in already in effect in nine states. It is tied to the Affordable Care Act.
In the court case, Key Medical Supply argued that the new program would destroy much of the company’s business. The company also claims that the program would prevent people with developmental disabilities from having continued access to crucial equipment and supplies.
The bidding program is being implemented by the Centers for Medicare and Medicaid Services. The intent is to cut prices Medicare pays for certain medical equipment and supplies. But medical supply companies fear that program will make it difficult if not impossible for them to supply items people need for daily living.
The new program caps what Key Medical Supply would be reimbursed for a specialty tube, called a Gtube, at less than $40. Court documents indicate that is less than what it costs to buy the tubes Federal officials have not commented on the case. But the competitive bidding program has been criticized in other states for hampering patients’ access to needed medical equipment and supplies Home care advocates have already said they would bring in federal legislation to make changes to the program.
Frank will file a longer opinion on the case in the future.