States Grapple With Essential Benefits and Inclusion of O&P

Sept. 30, 2012 marked a non-binding deadline by the US Department of Health and Human Services for states across the country to inform the federal government of their selection of an Essential Health Benefits package required under the Patient Protection and Affordable Care Act.

The Patient Protection and Affordable Care Act (ACA) placed authority in the Secretary of the US Department of Health and Human Services (HHS) to design an Essential Health Benefits (EHB) package that every new individual and small group health plan will be required to cover after Jan. 1, 2014.

Shift in essential benefits activity to states

Inclusion of orthotics and prosthetics in the EHB package is critical to the patients and providers in the O&P community. The National Association for the Advancement of Orthotics and Prosthetics (NAAOP) and other organizations within the O&P Alliance have worked hard for the past 3 years to secure this coverage. In an unexpected move late in December 2012, the HHS Secretary issued non-binding guidance to state policymakers that shifted the responsibility to develop an EHB package from the federal government onto each state. The guidance suggested that the end of September 2012 would be the deadline for selection of a benchmark EHB plan that each state would choose from among the plans currently offered in the state. For instance, a state could choose the largest small group health plan functioning in the state or the state employees’ health plan, among others, as its benchmark benefits plan.

This new approach meant that inclusion of O&P coverage in the EHB package would be specifically left to each state’s discretion, at least in the near term until the HHS Secretary issues federal regulations. The states do not have unlimited authority, however, to design their benefit packages. The federal law (ie, the Affordable Care Act) contains several requirements for the EHB package and the HHS guidance issued in December 2011 addresses the federal role in these state-based determinations.


The creation of state EHB package

Once a state selects a benchmark benefits plan, the guidance states that the benchmark plan must be brought into compliance with federal law, including coverage of the 10 categories of benefits included in the ACA and compliance with non-discrimination language that requires insurers to offer plans with an “appropriate balance” of benefits covered. In addition, the plan’s benefit design cannot discriminate based on disability status and other factors. One of the 10 categories of federally mandated benefits is “rehabilitative and habilitative services and devices.” According to the legislative history of the ACA’s passage, it is this benefit category that Congress intended to cover orthotic and prosthetic care.

Peter Thomas 

Peter W. Thomas


Because of this devolution of decision-making on the EHB package to the state level, NAAOP and other O&P Alliance organizations, as well as the broader rehabilitation and disability community, have worked together through four different coalitions over the past several months on a comprehensive document to assist states with the process of establishing a benchmark plan and complying with federal law. This consensus document offers technical assistance to states as they design their benefit packages, now and in years to come when states are required to update their EHB packages.

This document received the support of more than 50 national non-profit organizations, including a variety of O&P organizations and a wide range of disability and rehabilitation patient and provider organizations. The document has been widely distributed to state policymakers, Capitol Hill health legislative staff, officials within the US Department of Health and Human Services, and other federal agencies addressing the implementation of the ACA. A copy of this technical assistance document can be found on the NAAOP website at

How practitioners can help

NAAOP encourages all O&P practitioners to download this comprehensive technical assistance document and use this consensus statement of rehabilitation benefits within each state across the country. Share this document with patients who are likely to advocate on behalf of O&P coverage. Send it to state policymakers and those in a position of influence on the EHB package issues.

Many states have either established their benchmark plan by the September deadline or are in the process of doing so. Over the next several months, however, states will continue refining their benefit packages, obtaining approval from the HHS Secretary and implementing these benefit packages at the state level through private health insurance plans, so that these benefit packages will be available to individuals and small groups in early 2014. In addition, states are required to update these benefit packages in future years. In this respect, this technical assistance document should have a long shelf life and offer meaningful guidance to states in designing their EHB packages to include orthotics and prosthetics for years to come.

Experience to date has shown that many of the state selected benchmark plans will already include coverage of O&P care, but if they do not — or do not to a sufficient extent — the consensus technical assistance document will assist states in enhancing their benefit packages to comply with the federal requirements for mandated benefit categories. It is also important to remember that many states have decided not to establish an EHB package of their own, nor will they establish a state-based insurance exchange. In this instance, the ACA requires the federal government to perform this task for them. This is why the technical assistance document has been distributed widely to officials within the HHS who are working on this issue.

Work together

NAAOP requests all practitioners across the country to work with state policymakers, legislators, insurance commissioners, health benefits commission members and state governors’ offices to promote orthotic and prosthetic coverage in the EHB process. The NAAOP website also offers sample letters and additional suggestions for advancing this issue at the state level. NAAOP will continue to work at the federal level to ensure that any proposed federal regulation maximizes the likelihood of inclusion of O&P benefits in the EHB packages across the states.

For more information:
On EHB benefits and this initiative, please email

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