Orthotics/Prosthetics

With a highly anticipated Supreme Court ruling regarding the constitutionality of the Patient Protection and Affordable Care Act serving as the backdrop, grassroots level organizers and O&P leaders continue to argue for inclusion in key areas of the far reaching bill, including the Essential Health Benefits Package. The Essential Health Benefits Package (EHB) is the package of benefits that every private health plan participating in a state health care exchange program will have to offer to individuals should the Patient Protection and Affordable Care Act (PPACA) be deemed constitutional and survive the upcoming presidential election. Although a Supreme Court ruling is not expected until June, organizational leadership and advocates continue to champion key legislative bills at the state and federal level rather than following a wait-and-see approach.

All eyes on the Supreme Court

After listening to 3 days of oral arguments, Justice Anthony Kennedy is believed to be the swing vote in the Supreme Court decision, but predicting his decision would only be speculation. The Supreme Court could rule that the PPACA is constitutional, they could deem it unconstitutional or the court may define what is and what is not constitutional. Depending on how the court rules, the constitutionality of the individual mandate, the obligation of most Americans to acquire health care insurance, would be in question.

	© iStockphoto.com

“It’s just too tough to say what will happen,” Ryan Ball, government relations, Orthotics and Prosthetics Group of America, told O&P Business News. “If they strike down the individual mandate, what happens to rates and premiums? The politics of this is fascinating to me. Conventional wisdom has changed a hundred times depending on what side you’re on.”

‘Game changer’

As of press time, the O&P lobbyists and legislative leadership have successfully maneuvered and positioned the profession to be included in the EHB.

On Dec. 16, 2011, the Center for Consumer Information and Insurance Oversight (CCIIO) published a 16-page bulletin establishing a system that allowed states to choose one of four different types of private health care plans known as benchmarks. According to the bulletin, each state would choose one of the four benchmark health care plans and then add benefits listed in the PPACA. Although O&P is not specifically mentioned by name in the bulletin, most O&P organizations are confident that the profession will be included in the EHB package because it is generally understood that O&P falls under “Habilitative and Rehabilitative Services,” a mandated benefit category.

	Peter Rosenstein

“As mandated by Congress, habilitative and rehabilitative services must be in the EHB package in every state,” Peter Rosenstein, executive director, American Academy of Orthotists and Prosthetists, told O&P Business News. “What that means could be different in every state. What falls under habilitative could be one thing in New York and another in California.”

The bulletin shifted the reasonability of developing the contents of the EHB package from the federal government to the states. For O&P, that meant that education and lobbying efforts had to now include Congressmen and women and their staff, as well as state legislators and state insurance commissioners. The O&P Alliance has been active and regularly communicating with leaders to make sure O&P is covered under the habilitative and rehabilitative devices mandate.

	Bruce McClellan

“We tried to get language put in that would have specifically stated that O&P was covered,” Bruce “Mac” McClellan, CPO, LPO, FISPO, FAAOP, president of Prosthetic-Orthotic Associates told O&P Business News. “The Alliance made a concerted effort. However, none of the suggested changes received by the HHS secretary from any entity were accepted, which was probably the path of least resistance.”

The four plans are:

• The largest plan by enrollment in any of the three largest small group insurance products in the state’s small group market;
• Any of the three largest state employee health care benefit plans by enrollment;
• Any of the three largest national federal employees health benefits plans by enrollment; or
• · The largest insured commercial non-Medicaid health maintenance organization (HMO) operating in the state.

“We felt we were in a good shape on a federal level in terms of being included in the Essential Health Benefits Package,” Ball said. “Now our lobbying efforts must focus on individual states. We have to have advocates in the individual states sifting through the nine different health plans to determine whether O&P is covered. We have to get in front of key legislative committees and state insurance commissioners that make these decisions. It really is a game changer and underscores how important it is to be involved at the state level, as well as the federal level. You often have more access at the state level then having to get through to Congress or fly to Washington, D.C.”

The Amputee Coalition encourages their advocates and supporters who want to raise awareness to look into benchmark plans and determine what O&P coverage is available for individuals.

“If O&P coverage is not available in a certain plan, we encourage advocates to raise awareness so we can lobby for O&P to be included in that specific plan,” Dan Ignaszewski, government relations manager, Amputee Coalition, told O&P Business News. “There are 10 options for each state. It is an arduous and complex process.”

Federal legislation

The pending Supreme Court decision has not stopped O&P advocates in Congress from sponsoring and supporting bipartisan legislation. There are three bills with an O&P focus currently working their way through the legislative process — the Medicare O&P Improvement Act (S.2125, H.R. 1958), the Insurance Fairness for Amputees Act (S. 773, H.R. 4175), and the Amputee Veterans Bill of Rights (H.R. 805).

“In terms of the three bills pending in Congress, the Medicare Improvement Act is a good start,” Ball said. “We as a profession want to take care of the bad actors, too. We want to focus on quality, higher educational standards and licensure.”

CMS has the authority to enforce what the Medicare O&P Improvement Act would accomplish — require Medicare to issue payment only to those who are qualified under a state’s O&P licensure statute. As of press time, there are 13 states with licensure. Introduced by Sen. Ron Wyden (D-Ore.), Sen. Olympia Snowe (R-Maine) and Sen. Charles Grassley (R-Iowa), the bill also seeks to curb fraud and abuse in Medicare.

“We are trying to be part of the solution,” Ball said. “The first step is getting as many practitioners licensed and adding stout educational requirements. We can’t sit back and wait. As a profession, we need to have a plan and execute.”

On March 9, Rep. Charles Dent (R-PA) and Rep. Robert E. Andrews (D-N.J.) introduced the Insurance Fairness for Amputees bill, which requires fair insurance access for amputees in their insurance plans and provides a standard of care for prosthetic coverage, to the House of Representatives. A version of this bill, (S.773) was introduced in the Senate last year by Snowe and Sen. Tom Harkin (D-Iowa).

In an election season, partisan politics generally slows legislation. Even with bipartisan support, which all three of the bills possess, the three bills have only a slight chance of being signed by President Obama by the end of the 112th Congressional session.

“There are huge differences between the two parties on a host of issues and a lot of legislators are sitting back and saying we are not going to do anything. We are not going to give the other party the opportunity to say they won. But introduction and active support for these bills is very important, nevertheless,” Rosenstein said. “If the President wins re-election, [then] you may see an incredible flurry of activity in the lame duck session between November and January, when the new Congress comes in. If the President loses, [then] you may see Congress wait for a new president and new Congress. I do not think anyone has a crystal ball at this point.”

While disappointing and at times frustrating, these bills do not simply disappear once the congressional session is over.

“It is a step-by-step process,” Ignaszewski said. “The more we can introduce the issues to legislators and educate their staffs the better chance you have to get a bill passed. We put an emphasis on getting cosponsorships on the bills in the House and the Senate. It does also lay the groundwork for making progress next year.”

State level advocacy

In late March, Rod Cheney, CPO, president, American Prosthetics and Orthotics, Ball and the Iowa Prosthetics Orthotics and Pedorthics Association lobby team met with Iowa House Republican leader Linda Upmeyer in Des Moines, Iowa with the hope of avoiding a funnel deadline for the Orthotics, Prosthetics and Pedorthics Practice Act (SF364), also known as state licensure. Funnel deadlines create legislative logjams, forcing organizations to reach certain benchmarks by an arbitrary date. It amounts to a stall tactic — a way to effectively kill a bill. Despite passing the state senate last year, Iowa’s state licensure bill fell victim to a funnel deadline, and it eventually failed to get out of house committee. Cheney, Ball and the lobby team stayed in communication with key Iowa legislators and committee leaders throughout the year following the bill’s setback. Less than a year later, they were back in the House Republican leader’s office, trying to avoid an all too familiar fate. Luckily for Ball and the lobby group, Cheney has a memorable office.

“The more you can get the legislators in the office and show them the technology and what you’re able to do with a patient or two, the better,” Ball told O&P Business News. “That’s what rang true when we met with house leadership. She had been to Rod’s office. She remembered the office, remembered him and then remembered the bill. You have to be tenacious like that in order to keep yourself on the top of the list.”

Upmeyer also happened to be a nurse practitioner. This allowed Ball and Cheney to relate to the House Republican leader on an entirely different level than many of their counterparts. On Tuesday, April 4, the Iowa house voted to pass state licensure in orthotics, prosthetics and pedorthics 96-1, and the Senate followed suit on April 10. Having passed both the House and Senate, the bill, SF364, will move to Iowa Gov. Terry Branstad for his signature or veto.

“We are meeting with the governor’s staff to make sure we get this done this year. Passage of new legislation is a heavy lift whether you are at the local state or federal level,” Ball said. “We are cautiously optimistic. We are just a small cog in a really big wheel. But sometimes you sit back and scratch your head and wonder how we didn’t get it done the first year.”

Regulatory concerns

According to Ball, one of the greatest challenges to the profession is specific to reimbursement in Medicare Part B in terms of instances of fraud and abuse. Fraud is not new, but CMS is cracking down with their auditing process, specifically the reporting and return of overpayment. A CMS proposed rule would extend their “look back” period from 4 years to 10 years.

“Just in general conversation with OPGA members, we are finding that fraud is not what it used to be,” Ball said. “It does not have to be willful. If this proposed rule moves forward it is going to be dangerous.”

McClellan thinks the increased scrutiny on fraud and abuse in Medicare and Medicaid may be the new normal for the O&P profession.

“What the profession and the Alliance hope to achieve is a symbiotic relationship with the federal government and CMS,” McClellan said.

“The practitioners and the profession as a whole want to do the right thing for our patients and with our billings,” he said. “We are in contact with CMS and other agencies on a regular basis and we are trying to show them that we are serious about helping them control fraud and abuse. We do not want that in our profession. We do not want that as taxpayers.”

The Medicare O&P Improvement Act is a signal that the profession is serious about this key issue.

The O&P Alliance, a coalition of the leading national O&P organizations, has encouraged CMS to enforce regulations that are already on the books. Section 427 of the Benefits Improvement and Protection Act (BIPA) restricts Medicare payment for custom fabricated orthotic and prosthetic devices only to those who are qualified practitioners. Yet, the educational standards for a qualified practitioner are not clearly defined.

“The O&P Alliance continues to push for specific educational requirements as part of determining who those ‘qualified’ practitioners are,” McClellan said. “We are encouraging the federal governement to do that so we have clear guidelines to follow and patients can be assured of the highest quality providers.”

Legislative education

With so much legislation still pending along with legislation that has passed but is not enforced, practitioners need a clear understanding of the O&P political agenda. According to Catherine Graf, JD, director of regulatory affairs, AOPA’s lobbying team scheduled 413 meetings with members of Congress and their staff in 2011. The relationships built in these meetings will last far longer than a Congressional session. With that in mind, AOPA recently held a Policy Forum in Washington D.C. to educate and inform O&P practitioners and leaders interested in becoming more involved with the O&P legislative process.

“We are trying to cover a lot of items,” Graf said. “We had a robust schedule and an ambitious agenda. We work to make sure people have the tools they need to have the background on the legislative topics that they’ll be discussing with congressional leaders or their staff.”

Some of the topics the forum was scheduled to discuss included:

• The 2012 election year;
• OIG report;
• Physician documentation and RAC audits;
• Supreme Court ruling and how it will affect your business;
• State Medicaid;
• Veterans Affairs issues;
• Support for O&P education and research;
• Essential health benefits package;
• Differentiating durable medical equipment from O&P;
• Off-the-shelf orthotics and competitive bidding.

Ball is a regular attendee of the AOPA policy forums and he urged other interested O&P practitioners and professionals to get involved.

“It can be doom and gloom, but its information we need to hear,” he said. “It is important to stay on top of it. Our national organizations are doing a great job interacting with practitioners and keeping them informed of their efforts. We need to humanize the profession and show the qualifications we have. That is what will help us get remembered. That is what ultimately moves policymakers.” — by Anthony Calabro

For more information:

Amputee Coalition. Government Relations Update. Available at: http://acoa.convio.net/site/News2?id=5325. Accessed: April 2, 2012.

Ball R. Government effects. O&P state licensure passes Iowa House. Available at: http://opga.wordpress.com. Accessed: April 6, 2012.

Calabresi M. Swampland. Why Obamacare may stand: Reading Justice Kennedy, The Supreme Court’s Swing Vote. Available at: http://swampland.time.com/2012/03/30/why-obamacare-may-stand-reading-justice-kennedy-the-supreme-courts-swing-vote/. Accessed: April 10, 2012.

Govtrack.us. S.2125:Medicare O&P Improvement Act of 2012. Available at: http://www.govtrack.us/congress/bills/112/s2125. Accessed: April 2, 2012.

Govtrack.us. H.R. 4175: Insurance Fairness for Amputees Act. Available at: http://www.govtrack.us/congress/bills/112/hr4175. Accessed: April 2, 2012

For more information:

Thomas PW. NAAOP legislative webcast: Physician fees and therapy cap funding, and essential health benefits. Accessed: April 6, 2012.