Pending O&P Legislation Impacts Private Insurance Coverage, Medicare, and Veterans

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By Peter W. Thomas, JD, and Sara Rosta, MA

The current Congress has been criticized for being unproductive when comparing the number of bills passed to previous Congresses, but that has not stopped the O&P profession from seeking legislative solutions to O&P problems. There are three important bills pending in Congress that all members of the O&P community should be aware of, understand, and support by contacting and asking their Congressional representatives to advance this legislation. Each House Resolution (H.R.) addresses a key area that impacts O&P patients and the providers who serve them- private insurance coverage, Medicare, and veterans in need of O&P care.

The Insurance Fairness for Amputees Act (H.R. 3020)

This bipartisan legislation was reintroduced in the 113th Congress by Representatives Charles "Charlie" W. Dent (R-PA) and Robert E. Andrews (D-NJ) on August 2, 2013. Passage of the bill is a major goal of the Amputee Coalition and would complement the state O&P insurance fairness bills it has worked to enact for years. The bill amends the Employee Retirement Income Security Act (ERISA) of 1974, the Public Health Service Act, and the Internal Revenue Code of 1986 by providing insurance fairness between the provision of prosthetics and custom orthotics and benefits for other medical and surgical services in group and individual health plans.

The bill does not mandate coverage of O&P services, but it does prohibit arbitrary restrictions in benefits, such as coverage policies that limit care to "one prosthesis per lifetime" or restrict access to particular types of O&P devices and components. There are more than 1.7 million people in the United States living with limb loss, and every year more than 130,000 people in our nation undergo amputation procedures. H.R. 3020, the Insurance Fairness for Amputees Act, is critical legislation to insure that individuals with limb loss and other disabling conditions have access to O&P care under private insurance.

In addition to providing insurance fairness of O&P coverage with medical and surgical benefits, the Insurance Fairness for Amputees Act provides the following:

  1. Prohibits separate financial requirements or more restrictive treatment limitations for O&P care.
  2. Requires a health plan that does not provide coverage for benefits outside of a network to ensure that its provider network is adequate to ensure enrollee access to prosthetic and custom orthotic devices and related services provided by appropriately credentialed practitioners and accredited suppliers.
  3. Allows limitation of coverage for required benefits for prosthetics and custom orthotics to the most appropriate device or component that meets the patient's medical requirements.
  4. Requires benefits to include repair and replacement due to normal wear and tear, irreparable damage, a change in the patient's condition, or as otherwise determined appropriate by the treating physician.

In light of the implementation of the Affordable Care Act (ACA), there have been questions as to whether H.R. 3020 is still necessary. It clearly is. The ACA will result in most, if not all, private insurance plans in the individual and group markets covering O&P care. But these plans will be able to impose limitations and exclusions, some of which may be somewhat arbitrary in nature. Passage of H.R. 3020 would round out the scope of coverage of O&P care in private insurance plans and policies. It would also impact ERISA self-insured plans that are not currently impacted by the state insurance fairness laws.

The Medicare Orthotics and Prosthetics Improvement Act of 2013 (H.R. 3112)

This bipartisan legislation was reintroduced on September 17, 2013, by Representatives Glenn Thompson (R-PA) and Mike Thompson (D-CA), and is cosponsored by Representatives Tammy Duckworth (D-IL), Tim Griffin (R-AR), Brett Guthrie (R-KY), Peter King (R-NY), Tom Latham (R-IA), Peter Roskam (R-IL), C.A. Dutch Rupperberger (D-MD), and Aaron Shock (R-IL). The American Orthotic & Prosthetic Association (AOPA) is the primary advocate advancing this legislation, but many other O&P organizations, as well as consumer and disability groups, support its passage.

The bill is designed to improve the quality of O&P care, reduce fraud and abuse, and conserve Medicare resources for Medicare beneficiaries with limb loss and orthopedic injuries and disabilities. Specifically, the bill seeks to link the ability to receive Medicare payment with practitioner qualifications based on the complexity of care provided. It does this by recognizing O&P state licensure and would hold O&P accreditation organizations to higher standards. The bill addresses prosthetics and custom orthotics while exempting off-the-shelf (OTS) orthotics. It also exempts certain providers from these requirements, including physicians and physical and occupational therapists, which is consistent with existing federal law. Finally, the bill is expected to save the federal government approximately $250 million over the next five years.

The impetus behind the introduction of this bill was the failure of the Centers for Medicare & Medicaid Services (CMS) to implement regulations linking provider qualifications with the right to be paid under Medicare. That policy is a federal law that was enacted in 2000 but never fully implemented. There is a long history with this issue, but the bottom line is that this legislation is designed to direct CMS finally to act on a major set of Medicare O&P policies it has thus far failed to implement. H.R. 3112 has been referred to the House of Representative's Committee on Energy and Commerce Subcommittee on Health and the House Committee on Ways and Means.

The Injured and Amputee Veterans Bill of Rights (H.R. 3408)

H.R. 3408, a bipartisan legislation, was reintroduced on October 30, 2013, by Representative Renee Ellmers (R-NC), along with Representatives Julia Brownley (D-CA), Howard Coble (R-NC), Mike McIntrye (D-NC), David Price (D-NC), Robert Prittenger (R-NC), David Roe (R-TN), and Raul Ruiz (D-CA). Additionally, 14 more members of the House have since joined in cosponsoring this legislation. An identical bill passed the House in 2010, but the Senate was not able to act before it adjourned for the year. The National Association for the Advancement of Orthotics and Prosthetics (NAAOP) is the chief organization advocating for passage of this bill.

H.R. 3408 seeks to improve care for veterans with injuries and amputations by posting, in every U.S. Department of Veterans Affairs (VA) O&P clinic and on the VA website, a list of rights that veterans have to appropriate O&P treatment. These rights will inform veterans of what they can expect regarding O&P care from the VA. The bill condenses the VA's current practices in writing and seeks to empower veterans to be their own best advocates to obtain the O&P care they need and deserve throughout the country.

If enacted, the secretary of the VA would be directed to ensure that the Injured and Amputee Veterans Bill of Rights is printed on signage in accessible formats and is prominently displayed in every VA O&P clinic. The secretary would also be instructed to conduct outreach to inform veterans of these rights and to collect information relating to any alleged mistreatment of injured and amputee veterans. The veteran liaison at each VA medical center would be charged with submitting a quarterly report to the VA's chief consultant of prosthetics and sensory aids about such information, and the chief consultant would be directed to investigate and address the information contained in the reports. Furthermore, VA employees who work at VA O&P clinics, as well as patient advocates of veterans who receive care there, would be required to receive training on the Injured and Amputee Veterans Bill of Rights.

The bill would establish the following rights of injured and amputee veterans:

  1. The right to access the highest quality O&P care, including the right to the most appropriate technology and best qualified practitioners.
  2. The right to continuity of care in the transition from the Department of Defense health program to the VA healthcare system, including comparable benefits relating to O&P services.
  3. The right to select the practitioner who best meets his or her O&P needs, whether or not that practitioner is a VA employee, a private practitioner who has entered into a contract with the VA secretary to provide O&P services, or a private practitioner with specialized expertise.
  4. The right to consistent and portable healthcare, including the right to obtain comparable services and technology at any VA medical facility across the country.
  5. The right to timely and efficient O&P care, including a speedy authorization process with expedited authorization available for veterans visiting from another area of the country.
  6. The right to play a meaningful role in rehabilitation decisions, including the right to receive a second opinion regarding O&P treatment options.
  7. The right to receive appropriate treatment, including the right to receive both a primary prosthesis or orthosis and a functional spare.
  8. The right to be treated with respect and dignity and have an optimal quality of life both during and after rehabilitation.
  9. The right to transition and readjust to civilian life in an honorable manner, including by having ample access to vocational rehabilitation, employment programs, and housing assistance.

It is important to note that the rights established under this legislation do not establish legal rights on which veterans can sue the VA for substandard care. The rights in the bill are intended to educate veterans and provide them with a set of expectations of VA O&P care so they can make the best case for their own O&P treatment. The bill was scored by the Congressional Budget Office as not adding cost to the VA in 2010, and that should still be the case. Numerous organizations support the bill including the Wounded Warrior Project, the Vietnam Veterans of America, the National Guard, the Disabled American Veterans, and national O&P provider organizations. H.R. 3408 was referred to the House Veterans' Affairs Subcommittee on Health.

Conclusion

A growing number of additional cosponsors on these important pieces of legislation will help demonstrate increasing support for passage of these bills. It is important that O&P practitioners, patients, and veterans contact their state representatives and ask them to cosponsor the following:

  • H.R. 3020, the Insurance Fairness for Amputees Act.
  • H.R. 3112, the Medicare Orthotics and Prosthetics Improvement Act of 2013.
  • H.R. 3408, the Injured and Amputee Veterans Bill of Rights.

Your congressperson can be contacted via phone, mail, or e-mail, or by dialing the switchboard operator at the U.S. House of Representatives at 202.225.3121 and asking to speak with your representative. These bills will only move through the legislative process if the O&P community puts enough pressure on Congress to do so.

Peter W. Thomas, JD, is general counsel for the National Association for the Advancement of Orthotics and Prosthetics (NAAOP). Sara Rosta, MA, is a legislative assistant at Powers Pyles Sutter & Verville, Washington DC.