BIPA Section 427 Update and Other Health Care Developments

There were significant developments on health care issues this month, both broad and narrowly focused on O&P Care.  First off, the Senate was not able to muster a majority to pass the so-called Graham/Cassidy ACA repeal and replace legislation, which means that for the foreseeable future, persons in need of orthotic and prosthetic care will be able to access coverage under Medicaid and private, individual insurance.  This is because O&P care is typically considered an essential health benefit under the Affordable Care Act.  In related news, the House and Senate are moving closer to reauthorizing the Children’s Health Insurance Program (CHIP) for a 5-year period.  CHIP covers over 9 million children with health insurance that includes coverage of O&P care.

With respect to BIPA Section 427, CMS announced that it is “withdrawing” the proposed rule published on January 12, 2017, comments for which were due in March.  CMS received over 5,000 comments and the strongest objections came from physicians, PTs, and OTs, who arguably were exempted from the rule by statute.  By mandating that these providers obtain state licenses to provide O&P care or get certified by ABC or BOC, CMS generated tremendous opposition to the proposed rule.  In the end, these organizations overwhelmed CMS and were able to convince the Trump Administration to pull the rule in the name of regulatory relief.

There is no way paint a rosy picture of this development.  After years spent trying to finally get CMS to issue these regulations in final form, this is a significant step backwards.  However, there are some glimmers hope that we hope to build on.  First, the announcement stated that the rule was being withdrawn to “assure agency flexibility in re-examining the issues and exploring options and alternatives with stakeholders.”  We have already communicated with CMS and plan to meet with them soon to discuss how to proceed from here.

Second, this development heightens the need to rally behind passage of the Medicare O&P Improvement Act (S. 1191 and H.R. 2599) which includes provisions compelling CMS to finally issue regulations interpreting Section 427 of BIPA.  The bill explicitly exempts physicians, PTs and OTs, which would remove the majority of the opposition to the rule.  NAAOP will continue to work for passage of the O&P Medicare Improvement Act and seek alternative ways to implement the letter and spirit of BIPA Section 427.

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