NAAOP releases statement on CMS proposed rule on Section 427 of the BIPA of 2000

After the publication this week of a proposed rule from CMS that would specify the requirements and qualifications needed for O&P practitioners and suppliers, the National Association for the Advancement of Orthotics and Prosthetics have praised the announcement, calling it a “tremendous” milestone for the O&P profession.

“This is tremendous,” Peter W. Thomas, JD, general counsel for the National Association for the Advancement of Orthotics and Prosthetics (NAAOP), said in a corresponding YouTube video. “This is a broad interpretation of the statutory provision and it helps us and bolsters some of the arguments that we have been making on related policy issues. For instance, it clearly separates further durable medical equipment from O&P care.”

The Benefits Improvement and Protection Act of 2000 (BIPA) Section 427 states no payment shall be made by the Medicare program to any practitioner or supplier of custom orthotics or prosthetics who is not qualified to provide an appropriate level of care.

According to the statement by the NAAOP, the rule would require any practitioner or supplier that provides custom orthotics or prosthetics be licensed if the state in which they practice has O&P licensure, or they must be trained and educated to provide and manage custom O&P care, and be certified by either the American Board for Certification in Orthotics Prosthetics and Pedorthics, the Board of Certification/Accreditation or an accreditation organization approved by the HHS secretary.

“This is a major milestone for the O&P profession,” the statement noted. “It treats O&P practitioners in a similar manner to physicians and therapists for the purpose of providing custom O&P patient care. The proposed rule also bolsters the profession’s contention that the prosthetist’s and orthotist’s clinical records should be considered part of the patient’s medical record, and it further separates O&P from [durable medical equipment] DME.”

While the rule has benefits, the statement noted, “there is a downside to the breadth with which CMS interpreted these provisions of the Medicare law. [Since] the nominee for Secretary of HHS is an orthopedic surgeon who may be sympathetic to any potential physician resistance to this draft rule, NAAOP and its sister O&P organizations will have to think strategically about their comments to CMS on this issue and, above all, ensure that the rule is published as soon as possible in final form.”

There are at least two additional policy issues on which the NAAOP and other O&P organizations are likely to comment, the statement noted. The first involves the definition of a “fabrication facility,” which could “conflate central fabrication and patient care facilities.” The second involves a proposal to revoke the supplier number for any provider or supplier who submits a Medicare claim for payment without complying with this new regulation.

“We will have to think strategically about how we embark upon our comment letter, and in what we say and do, both to Congress and [HHS],” Thomas said. “Those are things we will continue to work on and discuss over the next several weeks, but you can be assured that the NAAOP, in working with its alliance partners, will be submitting comments.”

CMS will accept comments on the rule until March 13.

The full proposed rule can be found at


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