After lengthy discussions among NAAOP’s Board of Directors, O&P Alliance organizations, and other stakeholder groups, consensus on the proposed rule that interprets BIPA Section 427 is beginning to emerge. The Benefits Improvement and Protection Act of 2000 (BIPA) Section 427 stated that “no payment will be made” by the Medicare program for prosthetics and custom-fabricated orthotics unless they are provided by “qualified practitioners” and “qualified suppliers.” On January 12, 2017, CMS finally issued proposed regulations on this provision in order to implement this long-overdue requirement.
CMS surprised many by interpreting the statute broadly, applying new training, education, and certification requirements on all “professionals” who submit Medicare claims for custom fabricating O&P, including physicians, physical therapists, and occupational therapists. The proposed rule also requires accreditation of all qualified suppliers by ABC, BOC or an “equal” accrediting organization designated as such by CMS. Off-the-shelf orthotics are not impacted by the proposed rule.
NAAOP’s board and its membership have been grappling with its comments to the proposed rule because of the broad scope of the rule. On the one hand, the proposed rule could be viewed as a major victory for the O&P profession in that CMS has recognized the importance of specific training, education, and credentialing in order for health care professionals and suppliers to provide complex and customized O&P care. This interpretation bolsters our arguments that O&P is fundamentally different from DME, that prosthetists and orthotists are important members of the rehabilitation team, and that O&P practitioners’ clinical notes should be considered part of the patient’s medical record for purposes of determining medical necessity.
On the other hand, NAAOP is concerned that such an expansive interpretation of BIPA Section 427 will engender significant opposition from various stakeholders, increasing the likelihood of further delays, or perhaps leading to no final rule being published at all. We must not allow the proposed rule to become a pyrrhic victory. NAAOP believes that the purpose of BIPA Section 427 was, and is, to protect patients from unqualified practitioners and suppliers of custom O&P care, and to protect the integrity of the Medicare program from fraud, waste and abuse. It was never intended to restrict patient access to care from health professionals who routinely provide specific types of orthoses with no established record of patient harm (e.g., hand orthoses provided by certified hand therapists).
The proposed rule was published by the former Administration. The final rule faces a stiff headwind in the new regime which is focused on lessening, not increasing, regulation on business and, in the health care area, health care providers. NAAOP seeks to strike the right balance to ultimately secure timely publication of a final rule that works well for O&P patients, the providers who serve them, and the Medicare program.