NAAOP Letter to O&P Professionals

Dear O & P Professional:

NAAOP is beginning 2006 with a new look and a renewed emphasis on communicating our commitment to advocating for the millions of people with amputations, limb differences and orthopedic impairments. At the same time, NAAOP will continue to monitor the activity in Washington and maintain a strong presence in O&P legislation and regulation.

Congress reconvenes in a few weeks amid a major lobbying scandal that will decrease the influence of large political contributions and increase the importance of having a compelling, unified message delivered primarily by constituents.

That is why NAAOP is well positioned to represent the O&P field in 2006. NAAOP is a strong voice that represents all constituents in the comprehensive O&P patient process. As always, our highest priorities are patient outcomes and quality. Member involvement in NAAOP’s government relations activities, both financial and in-kind, has never been more important. Our strength is in our collective voice.

With Congress again poised to consider comprehensive Medicare changes this year in a very difficult fiscal climate, there will be tremendous pressure to further freeze or cut provider fees, expand and accelerate competitive bidding, and create quality standards that accommodate a wide range of providers and suppliers.

The threats and opportunities are great. NAAOP has been a catalyst for leadership in O&P healthcare legislation and we owe this success to our members. Of course, it is critical that we have a continued strong Washington presence during the 2nd session of the 109th Congress. If you are already a NAAOP member, thank you for your support. If you are not a member, please join us and make a difference. Join here on our website or please call 1-800-622-6740 and ask to speak with George Breece.

Thank you for your professional commitment to the advancement of O&P patient care and to the preservation of your profession.

Sincerely,

Mark DeHarde
President
George W. Breece
Executive Director
Peter W. Thomas
General Counsel
  • Written by NAAOP

Congress To Work Through Fall on Health Care Bills

Congress is expected to work into the holiday season as House and Senate committees consider major legislation that could, in the end, impact orthotics and prosthetics. The main political driving force behind legislation is looming cuts in the Medicaid program, the federal/state program that provides health care to low income Americans. However, also driving the process is a scheduled cut in physician payments under Medicare that, if not rectified by the end of the year, would reduce payments to physicians by 4.5% in calendar year 2006. Though this cut does not impact orthotists and prosthetists, any Medicare bill that emerges from Congress is going to have to pay for itself, implicating a whole host of potential cuts to other Medicare providers. Despite this, the controversial new Medicare drug benefit has been declared “off-limits” by President Bush. To what extent O&P practitioners are impacted by changes to Medicare this fall is unclear at this point, but a host of changes are in the offing.

Any Medicare bill will most likely be attached to the anticipated end-of-year Omnibus Appropriations spending bill that will wrap up the first session of the 109th Congress in November or December. This is because members with be hard pressed to vote for cuts in Medicaid unless that are coupled with the end-of-the-year spending package.

O&P practitioners are still smarting from a three-year fee freeze enacted in the Medicare Modernization Act of 2003. The cut, which is scheduled to run through 2006, is not likely to be extended. The Chairman of the influential Senate Finance Committee, Charles Grassley (R-IA), has stated that a Medicare package will likely not contain fee schedule freezes for O&P providers. But that assessment may be muted by the need for Congress to fund ways to pay for other priorities, specifically to offset an increase to physician payments. With the fiscal climate very unfavorable to any new Medicare spending, Congressional leaders will be looking at all provider payments and this includes O&P practitioners.

Another potential issue impacting the Medicare population is the $1,500 per patient, per year caps on physical/speech therapy and occupational therapy that are scheduled to be implemented in 2006 if Congress does not act. The caps, which were initially enacted in the Balanced Budget Act of 1997, have been subject to a moratorium for much of the time since enactment with the exception of a brief period in 2002. If implemented, the caps have the potential to seriously impact people with disabilities who need routine physical therapy or an intensive course of therapy to rehabilitate an acute injury. But a long term fix to this problem is very expensive, potentially implicating additional cuts to other Medicare providers.

Another potential provision under consideration is Medicare beneficiaries’ “direct access” to physical therapists without physician referral. The latest draft of this proposal also has the potential to directly impact O&P practitioners by potentially allowing physical therapists to provide O&P services directly to Medicare beneficiaries-without a physician’s referral. Though advocates for direct access have been unsuccessful in enacting full direct access at the federal level, the Medicare Payment Advisory Commission (MedPAC) studied the issue and issued a report in December 2004. The recommendations did not endorse direct access; in fact, the Commission stated that direct access could be detrimental. But despite MedPAC’s less than enthusiastic assessment of direct access, influential leaders in Congress have pledged to work toward including a direct access provision in the next Medicare bill.

Although O&P providers may not be directly targeted this fall in the Medicare debate (at least at the time of this writing), they must remain vigilant to ensure that no “surprises” occur in November or December if a Medicare bill is enacted. NAAOP will be monitoring developments closely and plans on actively engaging Congress throughout this important time.

  • Written by NAAOP

Why Oppose PT “Direct Access”?

To: NAAOP Members

From: Mark DeHarde – NAAOP President

Why has NAAOP opposed the proposal by the physical therapy trade association to remove from Medicare the requirement to obtain a physician’s referral before physical therapy services can be provided to a patient? Why should the wider O&P community continue to vigorously oppose direct access?

In 2003, NAAOP joined a coalition of organizations including the ACA, AAOP, AOPA and various physician and rehabilitation groups, in opposing Medicare Direct Access. The legislation authorizing this change to Medicare law presented serious concerns for our patients, our profession and the fiscal health of the Medicare system. NAAOP believes physical therapy—and all Medicare-covered services—should be provided under the supervision of a physician to ensure that all underlying medical conditions of the patient have been properly diagnosed to clear them for physical therapy treatment or other services. Moreover, since a growing number of states now include orthotics and prosthetics (or some portion of O&P) in their PT state practice acts (and in many states where our profession does not have O&P licensure), NAAOP is very concerned about the possibility of patients receiving comprehensive O&P services from physical therapists who simply do not have adequate education, training and experience to provide professional O&P services and related O&P technology. If Medicare were to eliminate the requirement for a physician referral, the provision of O&P services by PTs in the coming years may accelerate dramatically, as would traditional physical therapy services.

Physical therapists are our primary colleagues in the care of our patients. Each O&P practitioner enjoys relationships with PTs that are crucial to patient care, and the PT’s role in the rehabilitation process is fundamental to good outcomes. We wholeheartedly support the ability of physical therapists to directly provide temporary splints to patients and therapy training in using definitive O&P technology that O&P practitioners provide. But this does not justify support for PT Direct Access.

Rank and file physical therapists have no interest in providing comprehensive O&P services, and generally do not consider themselves qualified to provide them. But their leadership in Washington and the state capitals have ambitious plans for amending all 50 state practice acts to include comprehensive O&P care within the PT’s scope of practice. This goal, coupled with PT Direct Access at the federal level, is the “one-two punch” aimed at our profession and our patients. North Dakota is the PT’s most recent “victory” in this area, where the state law was just rewritten to explicitly include orthotics and prosthetics in the PT scope of practice. One must ask the question; is this really a victory for patients?

The O&P community must unify now and draw a line in the sand to assert that patient outcomes and safety are the highest priority and that provision of comprehensive O&P services requires the necessary education, training and experience that only members of the O&P profession possess. Ultimately, this set of issues must be dealt with at the federal level with a proper definition of “qualified practitioner” and facility accreditation, as well as through state-based O&P licensure. All of these efforts must flow from a proper definition of the clinical scope of practice for comprehensive O&P services and the demonstrated core competencies that O&P clinicians are uniquely qualified to provide in order to safely deliver the intended clinical and functional outcomes.

PT Direct Access is NOT in the best interests of O&P patients or, for that matter, all rehabilitation patients. Please communicate this message to your congressional representatives and state legislators and be vigilant in reiterating the message. The PTs outnumber us, will outspend us, and are more organized at the state level. Our patient-centered message and our passion for providing our patients with the highest quality care are out strongest assets. Join with me and NAAOP in advancing this cause.

  • Written by NAAOP

Medicare “Direct Access” – A Trojan Horse for Physical Therapy’s Expanding Scope of Practice

Legislation has been reintroduced in the U.S. House and Senate that has the potential to allow physical therapists to prescribe and provide orthotic and prosthetic services directly to Medicare beneficiaries, assuming O&P services are included in a particular state’s physical therapy practice act. This bill could lead to the ability of PTs to prescribe and provide O&P care in such a state without any involvement, supervision, or coordination by a physician. But in order for this to occur, Congress must first decide whether Medicare should eliminate the current requirement to obtain a physician’s referral before physical therapists can provide physical therapy services to patients.

This proposal has been skillfully named “PT Direct Access” by physical therapy proponents, but it could just as accurately be described as “PT self-referral.” If a “direct access” bill does, in fact, make it through Congress and into a possible Medicare bill this fall, the implications to professional O&P care in some states, and eventually nationally, could be far reaching for many years to come.

What is Direct Access?

The Medicare direct access legislation discussed in this article would remove the current Medicare requirement for a physician’s prescription to provide a course of physical therapy. Direct access, as a concept, has been in existence in various forms for many years. Direct access proponents claim that thirty-nine states currently allow some form of direct access to physical therapy services without a physician’s prescription. However, according to the American Academy of Orthopedic Surgeons, only two states have unrestricted direct access laws that truly permit physical therapists to provide PT services without a physician’s involvement or prescription.

Under many of the state direct access laws, physicians prescribe a course of physical therapy before patients see the therapist. And, of course, direct access does not guarantee payment. In addition to Medicare, many private health insurance companies require that patients obtain a physician’s prescription for physical therapy in order to receive payment.

The effort to permit physical therapists to have direct access to patients has been in play since the early 1990’s. A 1994 study by Jean Mitchell, Ph.D., of Georgetown University, and Gregory de Lissovoy, Ph.D., MPH, of Johns Hopkins University used data from Blue Cross and Blue Shield of Maryland to study the cost-effectiveness of direct access. They found that the costs incurred for physical therapy visits were 123% higher when patients were first seen by a physician than when they went to a physical therapist directly. The study also showed that physician referral episodes generated 67% more physical therapy claims and 60% more office visits than did episodes when the patient went directly to the physical therapist without a physician referral. Opponents of direct access point to this one study, which is over ten years old and focused on only one state, as weak evidence that direct access is cost-effective. The study itself was retrospective and did not account for the medical complexity of patients in the two settings, and may explain the difference in overall cost between patients who chose direct access over physician referrals.

MedPAC Examines Direct Access

Legislative efforts by proponents of PT Direct Access culminated in December 2003 when the Medicare Modernization Act of 2003 required that the Medicare Payment Advisory Commission, or MedPAC, conduct a study within one year of enactment on the feasibility and advisability of Medicare allowing direct access to outpatient physical therapy. The MedPAC report was issued in early 2005 and cast doubt on the viability of the direct access concept. The report clearly concluded that “physician requirements help ensure beneficiaries receive medically appropriate care.”

The full report is available at:  www.medpac.gov/publications (PDF).

MedPAC serves as a quasi-governmental entity that studies Medicare payment issues and publishes reports to Congress that recommend payment policy changes. MedPAC’s recommendations are non-binding, but are routinely used as a basis for Congress to consider changes to the Medicare program.

MedPAC considered the direct access issue publicly at its December 2004 meeting. It previewed its conclusions during Commission discussion, indicating that elimination of the physician referral and review requirements would set a bad precedent for other Medicare services that have similar coverage requirements for physician referrals or orders. Such referrals are required for home health care, skilled nursing facility stays, durable medical equipment, orthotics and prosthetics, medical supplies, outpatient drugs, oxygen, and occupational therapy.

Supporters of direct access often assert that beneficiaries do not have adequate access to physical therapy services, particularly in rural areas, but the data cited by MedPAC appears to quell that argument. MedPAC found no evidence of limited access to physical therapy services throughout the country. MedPAC also considered the complex medical conditions underlying many patients in need of physical therapy, stating that “[b]eneficiaries often have multiple medical conditions and physicians can consider their broad medical care needs.” Using this rationale, MedPAC contended that the physician as “gatekeeper” also prevented unnecessary care or therapy services that were marginally beneficial, thus saving Medicare money and improving patient care.

Rather than MedPAC’s endorsing physical therapy direct access, it actually questioned the efficacy of physical therapy services in the elder population altogether. It recommended that evidence-based practice guidelines would help establish when and for how long beneficiaries would typically benefit from physical therapy services, thereby reducing the amount of inappropriate or medically unnecessary care. The Commission encouraged the physical therapy profession to help research and develop this body of evidence and “use it to establish credible guidelines for outpatient physical therapy services furnished to older patients.”

MedPAC reports are usually given significant weight by Congress, but since the report is not binding, the door is still open for legislation on direct access.

New Direct Access Legislation Gains Support in Congress

Legislation introduced in March 2005 promises to amplify the charge for direct access in Congress despite the MedPAC report’s blows to the prospects for direct access. The “Medicare Patient Access to Physical Therapy Act of 2005” is very similar to the bill introduced in the previous Congress and would allow physical therapists to prescribe and bill Medicare for their services within their state-defined scope of practice without a physician’s referral.

In the Senate, the Medicare Patient Access to Physical Therapy Act is sponsored by Senator Blanche Lincoln (D-AR), a member of the Senate Finance Committee, which has jurisdiction over the Medicare program. The House bill is sponsored by Congresswoman Melissa Hart (R-PA), who is a member of the House Ways and Means Committee, which also oversees Medicare. At the time of this writing, the Senate bill had eight cosponsors and the House bill had 78 cosponsors, indicating that the physical therapy trade association is lobbying hard on this legislation.

This new bill takes on greater significance this year with the prospect of a Medicare bill looming in the fall of 2005. The recently-passed budget agreement contained “reconciliation instructions” that mandate legislative changes to entitlement programs such as Medicare and Medicaid. This development, coupled with heavy pressure from therapy groups to extend the moratorium on the annual $1500 per patient caps on outpatient physical and speech therapy and occupational therapy has the potential to result in passage of a compromise Medicare package that may include some version of the direct access legislation. With both sponsors of the bill on the committees with jurisdiction over Medicare, they will be in a position to exert significant influence over the contents of the final Medicare bill, assuming such legislation is enacted.

Effect of the Direct Access Legislation on O&P Care

How PT Direct Access legislation impacts the future of O&P care is the subject of significant disagreement. The legislation, if passed, would define physical therapy services according to state scope of practice laws and, therefore, if state law includes O&P care in its PT scope of practice, a PT would be able to provide O&P care without a physician’s order. The counter-argument, which the PT trade association currently asserts, is that O&P care is an entirely separate Medicare benefit and that, even if the legislation passes, O&P care will continue to require a physician order.

In terms of the bill’s potential impact on the O&P field specifically, the direct access legislation amends the Medicare definition of “outpatient physical therapy services” to permit a “qualified physical therapist” to furnish physical therapy services without the involvement of a physician. The legislation also amends the definition of “outpatient physical therapy services” to exclude any services that fall outside of a state’s scope of practice law.

Although stated in the negative (i.e., excluding services that are outside state scope of practice laws), the legislation’s incorporation of state scope of practice laws arguably establishes that the definition of “outpatient physical therapy services” for Medicare purposes includes any service authorized by a state’s PT practice act. Under this interpretation, if orthotics and prosthetics are included in a given state’s practice act, then they will be considered “outpatient physical therapy services” under Medicare law and a PT may provide and be paid for O&P care without physician involvement.

In contrast, the PT trade association currently asserts that physical therapy and O&P care are statutorily separate Medicare benefits and, because Medicare program instructions require that a physician “order” (or prescription) be on file in order for the DMERCs to issue payment on O&P claims, the direct access legislation is a non-issue for the O&P community. Under this interpretation, the legislation permits physical therapists to self-prescribe physical therapy, but such therapists would need a physician’s written order (or, in certain circumstances, the order of a nurse practitioner, clinical nurse specialist, or physician assistant) to furnish O&P care. SeeProgram Integrity Manual § 5.1. As a result of this argument, some O&P organizations that previously opposed direct access legislation have recently taken more neutral positions on the newly-introduced bill. Other organizations, such as NAAOP, continue to oppose direct access, not only for the potential negative impact it could have on the future of O&P, but also because of the belief that it is not in the interests of Medicare beneficiaries generally and could balloon Medicare spending for physical therapy services.

If the direct access legislation is enacted, then the future of O&P care will be substantially impacted by which one of the above arguments carries the day. Again, Medicare program guidance currently states that O&P care is only covered if furnished pursuant to the order of a physician or, in certain circumstances, the order of a nurse practitioner, clinical nurse specialist, or physician assistant. See Program Integrity Manual § 5.1. If the bill passes and is interpreted to include O&P care when such care is authorized by a given state’s scope of practice law, then this will trump any manual provisions requiring that PTs obtain a written order for O&P care (statutory language takes precedence over program instructions when a conflict arises).

However, even if the legislation is enacted but is not interpreted to include O&P care, it nevertheless lays the foundation for physical therapists to self-prescribe O&P care. Because the requirement of a physician’s order is found in program instructions rather than statute or regulation, it likely can be amended without Congressional action or notice and comment rulemaking. We believe it likely that, if PTs are granted the autonomy to self-prescribe physical therapy services, they will soon argue that Medicare program instructions should be amended to exempt physical therapists from the requirement that O&P care requires a written order from a physician. Once Congress has legislated that PTs do not require a physician order to furnish physical therapy services, it will be difficult to convince CMS that a physician order is necessary for a physical therapist to provide O&P care.

Direct Access Legislation Could Circumvent the Negotiated Rulemaking Process

The government has long recognized that there is an increased likelihood of abuse in the O&P field when such services are provided by unqualified practitioners. See Medicare Orthotics, OIG Report No. OEI-02-95-00380 (Oct. 1997). But the impact of the Medicare Patient Access to Physical Therapy Act could have the consequence of doing an “end-run” around the very issue that stalemated the O&P Negotiated Rulemaking Committee in 2003.

Section 427 of the Benefits Improvement and Protection Act of 2000, or BIPA, addressed the issue of which providers were considered “qualified” to provide the full range of O&P care by providing that Medicare would only pay for prosthetics and custom-fabricated orthotics if furnished by a “qualified practitioner.” BIPA limited the definition of “qualified practitioner” to physicians, certified orthotists and prosthetists, and “qualified” physical and occupational therapists.

BIPA also created a negotiated rulemaking process to assist the Centers for Medicare and Medicaid Services (CMS) with drafting the regulations interpreting Section 427. Between October 2002 and July 2003, CMS convened approximately eight two-day meetings where representatives of over 20 O&P-related organizations met and discussed, among other things, who should be considered “qualified” to provide professional O&P care (as opposed to “off-the-shelf” orthotics which are routinely provided by therapists and others with minimal training). In the end, the Negotiated Rulemaking Committee deadlocked without consensus on the matter of whether physical and occupational therapists should be permitted to provide O&P care solely based on state scope of practice law. CMS is currently developing a regulation that will interpret Section 427 of BIPA but little is known about the path that CMS will propose in terms of whom is considered “qualified” to provide comprehensive O&P care. However, the PT Direct Access legislation renders this point moot, since it arguably takes the further step of providing that, not only can PTs provide O&P care when permitted under state scope of practice laws, but they can do so without a physician prescription.

Furthermore, the PT Direct Access bill contains an explicit definition of the term “qualified physical therapist” and commits this definition to statutory language. The definition is extremely expansive, essentially grandfathering-in the vast majority of PTs. If this bill were to be enacted as is, or if this particular provision were to be stripped out of the direct access bill and included in a broader Medicare package, it would potentially establish in the Medicare statute that virtually all PTs are “qualified” for purposes of BIPA Section 427. This would explicitly authorize virtually all PTs to be paid by Medicare for the provision of comprehensive O&P care, and would completely circumvent the Section 427 regulation scheduled to be released later this year.

Political Future of Direct Access Legislation is Uncertain

The battle over direct access in Congress will likely center on the asserted efficacy, cost-effectiveness, and rationale for allowing enhanced access to traditional and physical therapy services, not on the impact that this bill will have on O&P. Under a strict interpretation of the legislation, the bill does not specifically or explicitly authorize physical therapists to self-prescribe O&P care. As a result, the bill’s potential impact on O&P will not likely be a major issue debated on the House or Senate floor. Thus, many in the O&P field will likely be unaware of the potential impact that physical therapy direct access may have on O&P practitioners and patients.

The advocates in favor of direct access are many. They are well-funded and organized at both the state and federal levels. They are in the process of gearing up for a massive push this summer and fall to include direct access provisions such as the Medicare Patient Access to Physical Therapy Act included in a final Medicare bill. Compounding these efforts is the real prospect of state legislatures actively supporting an expanded PT scope of practice to include O&P care.

Though not through the “castle walls” of Congress yet, the Medicare direct access bill could potentially be a Trojan horse for physical therapists to self-prescribe and self-provide O&P care for Medicare patients.

This article was prepared by Peter W. Thomas, JD, General Counsel to the National Association for the Advancement of Orthotics and Prosthetics, Adam H. Greene, JD, MPH, Associate, Powers, Pyles, Sutter and Verville, PC, and Dustin W.C. May, Legislative Director, Powers, Pyles, Sutter and Verville, PC

  • Written by NAAOP

Academy and NAAOP members

Welcome to the NAAOP site. Thank you for supporting your patients and your colleagues in the O&P community in this grassroots effort. The following summary was intended to clarify the appeal our community is making to policy makers and suggest the type of information that you can provide.

Congress has acted and the statutes are in place that should protect Medicare beneficiaries and the providers who serve them. The regulations that CMS constructs to interpret the statutes will determine the quality of patient care. The pertinent message needed from clinicians now is any patient-oriented evidence you can supply that supports the benefits of quality orthotic and prosthetic care provided by qualified practitioners. Your leadership is committed to communicating the patient benefits of care provided by ABC, BOC or state licensed orthotists, prosthetists or orthotist-prosthetists that work at an ABC or BOC accredited facility. By limiting payment to this definition of quality orthotic and prosthetic care provided by qualified practitioners, CMS can protect patients’ safety, efficacy and Medicare program integrity by eliminating the type of fraud seen in Florida. This is the message that can be supported by your patient care experience. Please e-mail your patient care experience to your representatives by visiting the sites listed below and entering your zip code information to access your representative.

www.house.gov and www.senate.gov

The following reference materials are available for your review:

  1. The Academy letter to their membership dated June 13, 2005
  2. June 3, 2005 letter to Mark B. McClellan, Administrator, Centers for Medicare & Medicaid Services, regarding Recent Medicare Fraud in Florida and the Need for Restrictions on Billing for Orthotic and Prosthetic Care
  • Written by NAAOP

Recent Medicare Fraud in Florida and the Need for Restrictions on Billing for Orthotic and Prosthetic Care

To: Mark B. McClellan, MD, PhD
Administrator – Centers for Medicare & Medicaid Services
Department of Health and Human Services

From: Mark DeHarde – NAAOP President
Michael E. Hamontree – AOPA President
David F. Moretto, CP, FAAOP – AAOP President
William W. DeToro, CO, FAAOP – ABC President

Dear Dr. McClellan:

The aforementioned organizations wish to express our deep concern regarding the recent fraud in southern Florida involving the submission of claims for prosthetic care. We believe that the actions in Florida demonstrate the need for CMS to restrict payment for orthotics and prosthetics to qualified orthotists and prosthetists. Such a policy will help ensure that the fraud perpetrated in Florida does not occur again.

It is our understanding that 48 Medicare durable medical equipment (“DME”) suppliers acted in concert and billed Medicare for approximately 21,000 artificial limbs that were neither medically necessary nor provided to Medicare beneficiaries. Based on published reports of this incident, the direct cost to the government for this fraud was approximately $122 million.

After independent investigation of this incident, we have found that none of the 48 suppliers that billed for these prostheses are accredited by the American Board for Certification in Orthotics and Prosthetics (“ABC”), a nationally recognized credentialing authority for prosthetists and orthotists. To the best of our knowledge, none of these DME suppliers had a licensed prosthetist on staff, despite the fact that Florida requires licensure for prosthetists. Finally, none of these suppliers are members of the Florida Association of Orthotists and Prosthetists, the American Academy of Orthotists and Prosthetists, the American Orthotic and Prosthetic Association, or the National Association for the Advancement of Orthotics and Prosthetics. In other words, the fraud that recently occurred in Florida involving the submission of claims for prosthetic services was not committed by prosthetists (or prosthetic facilities) who are in the mainstream of organized, professional prosthetic care.

The federal government has long recognized an increased likelihood of abuse in the orthotics and prosthetics (“O&P”) field when unqualified suppliers provide such services. For example, in 1997 the HHS Office of Inspector General recommended that CMS “consider stricter standards for whom is allowed to bill for orthotics, such as requiring professional credentials for orthotic suppliers.”1 In Section 427 of the Benefits Improvement and Protection Act of 2000 (“BIPA”), Congress addressed the matter by providing that Medicare shall only pay for prosthetics and custom-fabricated orthotics if furnished by a “qualified practitioner.”2 We believe that the recent events in southern Florida should reinforce the government’s longstanding view that Medicare should not pay for O&P care provided by unqualified practitioners.

Our research has revealed that in the recent past, approximately 28,000 Medicare suppliers have indicated their intention in their Medicare supplier application form to submit claims for orthotic and prosthetic services. However, there are only approximately 1,320 O&P facilities accredited by the ABC. This discrepancy reflects the fact that a large number of suppliers are routinely billing Medicare for O&P services without any certification or accreditation (or other objective indication) to demonstrate that they are qualified to provide the full range of professional O&P services.

In the immediate future, CMS has two opportunities to address this concern. First, we understand that CMS expects to publish proposed regulations in November 2005 implementing the “qualified practitioner” and “qualified supplier” requirements of §427 of the Medicare, Medicaid and SCHIP Benefits Improvement and Protection Act of 2000 (“BIPA”). BIPA §427 limits Medicare payment of prosthetic and certain types of orthotic care to the following providers:

‘(iii) QUALIFIED PRACTITIONER DEFINED- In this subparagraph, the term `qualified practitioner’ means a physician or other individual who–

‘(I) is a qualified physical therapist or a qualified occupational therapist;

‘(II) in the case of a State that provides for the licensing of orthotics and prosthetics, is licensed in orthotics or prosthetics by the State in which the item is supplied; or

‘(III) in the case of a State that does not provide for the licensing of orthotics and prosthetics, is specifically trained and educated to provide or manage the provision of prosthetics and custom-designed or -fabricated orthotics, and is certified by the American Board for Certification in Orthotics and Prosthetics, Inc. or by the Board for Orthotist/Prosthetist Certification, or is credentialed and approved by a program that the Secretary determines, in consultation with appropriate experts in orthotics and prosthetics, has training and education standards that are necessary to provide such prosthetics and orthotics.

‘(iv) QUALIFIED SUPPLIER DEFINED- In this subparagraph, the term ‘qualified supplier’ means any entity that is accredited by the American Board for Certification in Orthotics and Prosthetics, Inc. or by the Board for Orthotist/Prosthetist Certification, or accredited and approved by a program that the Secretary determines has accreditation and approval standards that are essentially equivalent to those of such Board.’.

If appropriate regulations implementing these statutory provisions were in effect today, the fraudulent activity that occurred in southern Florida may well have been prevented.

Second, we understand that CMS is in the process of implementing §302(a)(1) of the Medicare Modernization Act of 2003, which requires the Secretary to establish “quality standards” for orthotic and prosthetic providers. It is also our understanding that CMS is currently inclined to rely on independent accreditation of providers to satisfy this legislative mandate. Implementation of regulations interpreting these statutory sections offers CMS the opportunity to potentially eliminate a recurrence of the recent events in southern Florida by limiting Medicare reimbursement for comprehensive O&P services to certified orthotists and prosthetists and accredited O&P facilities. To this end, we encourage CMS to coordinate the regulatory teams developing these two different sets of regulations so that the final regulations will be substantively consistent.

We recognize and agree that CMS must avoid unnecessarily curtailing patient access to O&P care as it implements regulations for these statutory provisions. CMS, therefore, may want to consider a tiered credential that would permit “off-the-shelf” orthotics to be provided by individuals and facilities that achieve a lesser qualification standard, and more comprehensive orthotics and all prosthetics to be provided by those who achieve a higher credential, namely state licensure where applicable, or certification and/or accreditation by the ABC or BOC.

By limiting reimbursement for comprehensive O&P care to accredited O&P facilities or through state licensure, CMS will protect both beneficiaries and the Medicare program. CMS will protect beneficiaries because reliance on state licensure or ABC or BOC accreditation ensures that only practitioners with sufficient education, experience, and appropriate patient care facilities to ensure patient evaluation and follow-up will provide complex O&P care. CMS will protect the Medicare program because Medicare will only reimburse the full range of orthoses and prostheses when provided by an individual who has made a substantial commitment to the profession of orthotics and prosthetics, as reflected by the individual having completed the often rigorous education requirements of state licensure or the ABC or BOC certification processes. In contrast, the recent fraud in southern Florida demonstrates the problem with the current system—individuals can bill Medicare for comprehensive O&P care merely by securing a DMEPOS supplier number.

In conclusion, we hope that CMS recognizes the recent events in southern Florida for what they are—not a black mark on the O&P profession, but evidence of the need for CMS to work closely with existing O&P organizations in order to protect the Medicare program, the O&P field, and beneficiaries from the actions of unqualified suppliers.

REFERENCES

  1. Medicare Orthotics (OEI-02-95-00380), HHS Office of Inspector General (October 1997), available at oig.hhs.gov/oei/reports/oei-02-95-00380.pdf.
  2. Benefits Improvement and Protection Act of 2000, Pub. L. No. 106-554, § 427, 114 Stat. 2763, 2763A-520 (2000).
  • Written by NAAOP

Upcoming Proposed Rules impacting O&P

The Department of Health and Human Services recently released it’s semi-annual regulatory agenda that details all of CMS’s pending regulatory activity and their anticipated dates for publication. Several CMS rules of great interest to O&P are anticipated in the coming months and years:

In September of 2005, the Centers for Medicare and Medicaid Services (CMS) is expected to release the proposed rule for Medicare Competitive Bidding, which encompasses all Durable Medical Equipment and “off-the-shelf” orthotics. NAAOP worked diligently to ensure the most favorable definition of “off-the-shelf” orthotics in the final Medicare Modernization Act of 2003, but its interpretation and application by CMS will remain unclear until this rule is published. When the rule comes out, NAAOP plans a detailed analysis of the rule’s impact on professional O&P care and will draft comments as appropriate.

In November of 2005, CMS will release a proposed rule that will attempt to settle what constitutes a “qualified provider” for O&P services under the Medicare program. The outcome of this rule will ultimately settle the Negotiated Rulemaking process.

In December of 2006, HHS will release a final rule on the application of “inherent reasonableness” authority to all non-physician Medicare Part B payments—including O&P services. This rule has the potential to allow HHS and CMS to reduce reimbursement without significant notice and comment.

NAAOP will be monitoring the Federal Register diligently for the publication of these rules in the coming months and alert NAAOP members as appropriate.

  • Written by NAAOP

2005 O&P Policy Forum

To: NAAOP Members

From: Mark DeHarde – NAAOP President

On behalf of NAAOP’s Board of Directors, I would like to encourage you to attend the 2005 O&P Policy Forum in Washington, D.C., on June 20-22. Our collective efforts at this event will help set the course for the O&P field now and for years to come. Register by Friday, May 20 to receive the discounted hotel room rate. A registration form is available as a downloadable pdf.

O&P Policy Forum attendees will meet with lawmakers on issues of fundamental importance to our profession and our patients. This event is intended to be a show of force from the entire O&P community advocating for the fair and proper treatment of O&P in any Medicare legislation passed in the next two years. At the O&P Policy Forum you will be able to discuss issues impacting your practice, such as:

  • Opposing additional attempts to extend the current three-year Medicare payment freeze.
  • Seeking reasonable alternatives to abusive and intrusive Medicare audits; and,
  • Eliminating orthotic services from the Skilled Nursing Facility Prospective Payment System (SNF PPS) so that patients can receive proper and timely orthotic services.

All O&P professionals must take an active interest in defending our field. Your involvement is needed now more than ever–take this opportunity to be an effective advocate for O&P.

Policy Forum events begin at 3 PM on June 20 and will conclude by 3 PM on June 22. Individuals planning to attend the Policy Forum should arrive in Washington, D.C., before 2 PM on June 20 and should schedule departing flights after 3 PM on June 22.

We look forward to seeing you in June. If you have registration questions, please call (571) 431-0876, ext. 201 (AOPA), or (800) 622-6740 (NAAOP).

Registration is only $150 per attendee. Visit www.AOPAnet.org to register or call AOPA at (571) 431-0876, ext. 201. Register by May 20 to receive the discounted hotel room rate.

  • Written by NAAOP

NAAOP Endorses Recent “O&P Education Summit”

The National Association for the Advancement of Orthotics and Prosthetics would like to announce its endorsement of the O&P Education Summit that was held April 8th & 9th. The importance of delivering high quality orthotic and prosthetic care is essential in today’s O&P clinical practices especially with the vast amount of new technology available.

The O&P practitioner of tomorrow will require a solid core of curriculum that includes new technology which if used wisely, will greatly enhance the quality of life of those who are and will be seeking professional O&P care.

NAAOP lends its support to the educational ideas and standards that will appropriately prepare future O&P practitioners.

  • Written by NAAOP

Medicaid to be Cut $10 Billion Over 5 years

To: National Association for the Advancement of Orthotics and Prosthetics

From: Peter W. Thomas, Emily Niederman

Re: Budget Update – Medicaid to be Cut $10 Billion Over 5 Years

Last week Congress approved a fiscal year (FY) 2006 budget resolution and, for the first time since 1997, included reconciliation instructions to several Committees with jurisdiction over mandatory programs.

The House narrowly approved the “conference report” by a vote of 214-211. The Senate approved the same measure by a vote of 52-47, with Senators DeWine (R-OH), Chaffee (R-RI) and Voinovich (R-OH) voting against it.

The $2.56 trillion budget puts a virtual freeze on discretionary spending and estimates mandatory spending to reach $1.669 trillion in the coming fiscal year. The reconciliation instructions direct authorizing Committees, such as the Senate Finance and the House Energy and Commerce Committees, to find savings of $35 billion from mandatory program spending over the next five years.

The Senate Finance Committee, which has jurisdiction over both Medicaid and Medicare, must find $10 billion in savings over the next five years while the Senate Health, Education, Labor and Pensions (HELP) Committee must cut $13.7 billion from other health-related programs as well as education, labor and training programs. The House Energy and Commerce Committee has been charged with finding almost $15 billion in savings from programs such as Medicaid, possibly Medicare, and telecom-related programs. The House Ways and Means Committee must find $1 billion in savings from programs such as Supplemental Security Income (SSI), TANF, Social Services Block Grants, the Earned Income Tax Credit and possibly Medicare. Finally, the House Education and Workforce Committee has been instructed to find $12.7 billion in savings from programs under its jurisdiction including vocational rehabilitation and education programs. The Committees targeted in reconciliation will spend the next several months developing policies to achieve these mandated savings with a Reconciliation Bill expected in September, 2005.

Throughout this budget process, heavy debate focused on cuts to the Medicaid program. While numbers between $14 and $20 billion were originally considered by the Budget Committees, the final reconciliation number directed at the Finance Committee only allows up to $10 billion in cuts.

Additionally, it appears a Medicaid commission or advisory committee will soon be formed, although details have not been announced. The Commission will be charged with recommending changes to the program in order to achieve the required savings. The Medicaid Commission is expected to deliver its final report in December 2006 with an interim report due to Congress in September, 2005. Therefore, major Medicaid cuts are not expected to be implemented until FY 2007.

The reduction in cuts from the original proposals as well as the formation of the Medicaid Commission can be greatly attributed to Senator Smith (R-OR), who successfully opposed Medicaid cuts in the Senate budget resolution, as well as the national organizations, such as NAAOP, that worked to educate Members on the importance of Medicaid services.
Nevertheless, $10 billion in cuts will likely prove harmful to Medicaid recipients, particularly those with disabilities who depend on so-called “optional” benefits such as rehabilitation services, home and community based supports and services, assistive devices, and prescription drugs to maintain their health and independence.

We will continue to keep you updated as policy proposals emerge that are likely to become law later this year, particularly those that impact NAAOP members and the clients they serve. Additionally, we will keep you informed as details of the Medicaid commission develop and, specifically, of opportunities to influence its recommendations to Congress.

  • Written by NAAOP