Can O&P Afford to Play the Waiting Game?

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.


“It’s just too tough to say what will happen,” Ryan
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

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

  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, CPO, LPO, FISPO, FAAOP

“We tried to get language put in that would have specifically
stated that O&P was covered,” Bruce “Mac” McClellan, CPO,
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
  • 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

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

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

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

“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: Accessed: April 2, 2012.

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

Calabresi M. Swampland. Why Obamacare may stand: Reading Justice
Kennedy, The Supreme Court’s Swing Vote. Available at:
Accessed: April 10, 2012. S.2125:Medicare O&P Improvement Act of 2012. Available
at: Accessed: April 2, 2012. H.R. 4175: Insurance Fairness for Amputees Act. Available
at: 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.

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