As Americans started getting their first look this summer at some of the health care insurance options and plans that will be available on state exchanges, the push to guarantee insurance fairness for orthotic and prosthetic users has continued to move forward. Although the passage of the Affordable Care Act (ACA) has represented a big step in the right direction, O&P advocates believe more work is still needed to ensure individuals have adequate insurance coverage for O&P care and devices.
When the ACA was signed into law in 2010 by President Barack Obama, O&P parity laws had been enacted in 19 states. In 2011, one additional state passed an O&P parity law, bringing the total number of states with O&P insurance fairness laws to 20. During this period, other state legislatures also had considered O&P insurance fairness bills, but the bills failed to become law.
At the federal level, the first bill on O&P insurance fairness, entitled the Prosthetic and Custom Orthotic Parity Act (H.R. 2575), was introduced in the House of Representatives in 2009 during the 111th Congress. This first effort failed to make it out of committee despite garnering bipartisan support with 30 cosponsors supporting the bill.
Leslie Pitt Schneider
A second version of the bill, renamed the Insurance Fairness for Amputees Act (S. 773), was reintroduced in the Senate in 2011 during the 112th Congress. The bill was renamed to move away from the use of the term parity, which can seem more like a mandate and carries a negative connotation for some legislators. In addition, the language had been changed to more accurately reflect the intent of the bill, Leslie Pitt Schneider, JD, RN, an Amputee Coalition board member, chair of the Coalition’s government relations committee, and manager for clinical and regulatory affairs at Ottobock, said.
“The tone took one of being less than a mandate,” Schneider said. “Instead, for insurance companies that do provide coverage, we ask that it be on par with the federal payers, and from the restorative language, it is based on the argument, if you will, that insurance companies pay for state-of-the-art, implantable knee prostheses and other implantable prostheses for people, with the intent to get people back to ambulating and doing their full activities of daily living. Insofar as insurance companies are providing implantable prosthetics, we ask that they are equal to external prosthetics too.”
Source: Photo/Art_© Shutterstock
Despite these changes, the reintroduced bill failed to move out of committee. In fact, during the period when the Supreme Court was hearing arguments and deciding on the constitutionality of the ACA, forward motion on O&P insurance fairness bills at both the state and federal levels stalled while the health care system waited for the outcome.
“In that interim period when the Supreme Court was deciding what to do with the constitutionality, all of the progress that had been made at the state level in terms of introducing legislation was put on hold,” Schneider said. “Everybody said, ‘We don’t know what is going to happen at the federal level, we don’t know what’s going to happen with ACA, and we don’t want to make any choices here at the state level,’ so we had to stop.”
After the Supreme Court issued its decision upholding the ACA in June 2012, momentum for introducing both state and federal O&P insurance fairness legislation once again starting moving forward.
“Where we’re going with some of the state legislatures is basically saying the ACA didn’t completely fix this issue,” Dan Ignaszewski, director of government relations for the Amputee Coalition, said. “We had hoped that it would, but there are still a lot of issues out there where people don’t have adequate coverage for prosthetic devices, and that is the track that we’ve been going down, to try to raise awareness and bring it in front of legislators.”
On the state level, Ignaszewski said the Amputee Coalition is hoping to use the next 6 months to reintroduce state bills that were introduced this year and increase that number of states with enacted O&P insurance fairness legislation.
On the federal level, Ignaszewski and Schneider told O&P Business News that the Insurance Fairness for Amputees Act, H.R. 3020, was reintroduced in the House of Representatives on Aug. 2. The bill has bipartisan support, with Rep. Charlie Dent (R-Pa.) and Rep. Rob Andrews (D-N.J.) serving as cosponsors. Ignaszewski and Schneider are hopeful the bill will be passed this time around by the House.
Reintroduction of the bill in the Senate has been put on hold temporarily until bipartisan support can be obtained. Sen. Tom Harkin (D-Iowa) will once again serve as the lead Democratic sponsor, but the retirement of Sen. Olympia Snowe (R-Me.) has necessitated a search for a new lead Republican sponsor.
“We are looking for somebody to replace Sen. Snowe. She was very strong on the legislative front in helping us, and since her retirement, we have been trying to find somebody with her thinking,” Schneider said. “So definitely our people from the Amputee Coalition are lobbying and networking strongly to find that fit.”
O&P advocates view the ACA as a step forward in the fight for insurance fairness for O&P users. This is because orthotic and prosthetic services and devices are categorized under the umbrella of rehabilitative and habilitative services and devices, which is one of the 10 required categories in the essential health benefits package as mandated by the ACA statute.
“It is a step in the right direction that the health care bill requires insurance policies to cover rehabilitative and habilitative services and devices,” Ryan Ball, government relations, Orthotic & Prosthetic Group of America, said. “The change is incremental in terms of insurance fairness, but there are more amputees who are going to have access to health care and the coverage of their devices than otherwise would have.”
However, because the Department of Health and Human Services did not provide specific guidelines regarding what must be covered in the essential health benefits package, O&P coverage will be determined by each individual state. As such, every state has the potential to set different amounts and levels of coverage that are required for O&P care.
“One of the things the Amputee Coalition is working on is to ensure that the essential health benefits package in all 50 states will provide adequate coverage for prosthetic devices. Some of them still have caps and restrictions, so we are tracking that and commenting where we can to try and draw attention to it,” Ignaszewski added. “We are trying to make sure that legislators are aware of that, and in turn, we are raising the issue about the need for insurance coverage for prosthetic devices to be included in the state exchange plans.”
Despite the impact the ACA has made in furthering insurance fairness for O&P, working toward getting a federal bill enacted continues to remain a priority for O&P advocates and organizations.
Thomas F. Fise
“I think that overall there are some issues that the ACA addresses, and when it is fully implemented, it may well result in some help with the issues of insurance fairness,” Thomas F. Fise, JD, executive director of the American Orthotic & Prosthetic Association, told O&P Business News. “But I am certain that there are issues that are not addressed by the ACA that will require additional state and federal legislation to assure patients that they have consistent access to the necessary insurance coverage.”
For instance, Fise noted that although the ACA has some commentary with respect to lifetime caps, it does not address unique issues for amputees such as low allowable amounts or distinctions between coverage for prosthetics and other aspects of medical or surgical care. The ACA also does not make any provisions regarding insurers who place prosthetics and orthotics under the category of durable medical equipment, which frequently is excluded entirely from insurance policies.
Another reason to continue the drive toward getting a federal O&P insurance fairness bill enacted revolves around Employee Retirement Income and Security Act (ERISA) plans, which include self-funded employer plans.
“Even if all 50 states had enacted insurance fairness bills, those bills generally and almost universally do not cover ERISA plans,” Fise said. “Since about half of health insurance plans are ERISA plans, even if all 50 states enacted parity, you would still have half of the policies that would be uncovered.”
Small group and individual plans are regulated at the state level, whereas self-insured plans are regulated at the federal level. Ignaszewski said amputees who encounter insurance problems in these situations often contact the Amputee Coalition for help, and it is in these instances where federal O&P insurance fairness legislation would be particularly beneficial.
“It’s a challenge because we regularly hear from folks who have a self-insured plan in a state that may have an insurance fairness law, but unfortunately it may not apply to their plan if it is a self-insured plan,” Ignaszewski said. “In those instances, the federal bill will solve that problem, but the federal bill also will expand coverage to make sure that people in all the other states that don’t have those laws have access to care.”
In addition, Ignaszewski noted federal O&P fair insurance legislation would serve to reinforce bills enacted at the state level and thereby would help ensure that all of the insurers in those states are adequately covering prosthetic devices.
“Because a lot of business is conducted on those self-insured plans, states follow and set their benchmark plans based on some of the federal regulations, and so we anticipate that would make a big difference in all of the states that do not currently have the laws,” he added.
One of the most important things O&P practitioners can do to further O&P insurance fairness is to contact their state and federal legislators and voice their concerns. Fise recommended that practitioners should call or write to their congressional representatives, attend town meetings held by their representatives, or even visit their representatives at their district or Washington offices.
Practitioners also should talk with patients about their level of insurance coverage. Ignaszewski suggested that patients who have inadequate coverage should be referred to the Amputee Coalition. He also recommended that practitioners should become involved in the legislative process.
“We would love to have more practitioners get involved at the state and federal level because what we really need is boots on the ground,” Ignaszewski said. “Having people who are on the ground, practitioners and their patients, coming together, trying to solve this issue and making sure that they have adequate and affordable prosthetic care, benefits not only patients, but also benefits practitioners. It helps practitioners help their patients in a way that is beyond the office.” — by Mary L. Jerrell, ELS
O&P Business News asked Thomas F. Fise, JD, executive director of the American Orthotic & Prosthetic Association, about behind the scenes maneuvering for O&P coverage.
O&P Business News: What were some of the things that prevented the federal bill from going through previously?
Fise: Several thousand bills are introduced each year and very few of them are enacted into final law, so there are a lot of things that can go awry. There has to be the right sponsors and they have to have the right kind of legislation moving forward. It is important to first have the bill introduced because it raises a greater awareness among legislators that there is even a problem. Although I can’t put my finger on one thing that is responsible for why this bill or any other bill doesn’t get enacted, you want to keep going back and keep educating more people about the need and then hopefully at a later date, it gets done.
O&P Business News: Some of the states don’t have O&P or rehabilitative or habilitative services as part of their Essential Health Benefits (EHB). Is that what everyone thought was going to happen with the Affordable Care Act (ACA)?
Fise: First, I don’t think that people thought that when the ACA was passed that EHB would in any sense be a state-related matter. Six chairmen of what they call the committees of jurisdiction, which are the Energy And Commerce Committee, the Labor And Education Committee, and the Ways And Means Committee — the chairman of the full committee and the chairmen of the subcommittees of each of those — a total of 6 legislators wrote a letter to Sec. Sebelius during the EHB discussion or rulemaking process and said it was not their intention that this would be done by the states. It was their intention when they wrote the law that there would be one clear statement of EHB in federal law applicable in all the states.
In terms of what the EHB regulations say, they created a benchmarking process that allowed states to identify within some pretty limited criteria which plan in their state was most representative of EHB in private insurance plans in the state. But with respect to rehabilitative and habilitative benefits, the EHB ruling says — I believe there are 10 categories of benefits — that are specifically enumerated in the ACA, and one of those is rehabilitative and habilitative benefits. Therefore, what the rule says is that every benchmark plan adopted by a state has to have at least provisions as to those 10 categories within it. Therefore you can’t have an acceptable state benchmark plan that doesn’t have a rehabilitative and habilitative benefits provision within it. It must provide those benefits.
The shortcoming with the EHB rule is it doesn’t set a threshold for those, so a state benchmark plan could set a very low reimbursement policy for rehabilitative and habilitative benefits and still qualify but it cannot completely ignore them. So there is protection for rehabilitative and habilitative. It is not as strong as we would like, but you shouldn’t have any plans out there in any states that don’t include that at all. If a state came up with such a plan, the federal government would add a rehabilitative and habilitative benefit to it.
The ACA delegates the responsibility to write regulations to implement all of this to a bunch of agencies, most of them by HHS, but there are others that are done by the Treasury Department or by other agencies. The Department of Labor has a role in all that. So even if the ACA does say you can’t have caps of a certain amount — but the specifics of all that have to play out in regulations that are in the process of being written — that is another reason why you have to have active legislation going on so the people who are writing these regulations are aware of what the norm is and the issues they have to address when they flesh this out. You have to wait for the regulations before you know what it does and doesn’t do for you.
Disclosure: Sources for this story have no relevant financial disclosures.