High Public Profile Sets the Tone for Public Policy Impacting O&P Consumers

It's been a busy year thus far for O&P public policy. The impending implementation of the Affordable Care Act (ACA) has stimulated a flurry of advocacy efforts to ensure that O&P services are covered benefits throughout the new insurance exchanges, set to go live on January 1, 2014. Legislation is being prepared, and some bills have already been introduced in the 113th Congress to address O&P coverage and access to care provided by qualified providers. The Medicare program has dramatically increased scrutiny of covering advanced prosthetic technology, creating a chilling effect on prosthetic prescription throughout the healthcare system. Meanwhile, the public awareness of prosthetics, in particular, has never been higher, due, in part, to technological advancements that have attracted media attention. And the continuing flow of wounded warriors, coupled with the tragic bombings in Boston, Massachusetts, has kept medical rehabilitation and prosthetic care on the front pages of newspapers across the country. The Affordable Care Act A dramatic expansion in access to insurance coverage is set to occur with full implementation of the ACA, even as state governments grapple with how to implement healthcare reform at the state and local levels. For those without health insurance coverage, new insurance exchanges functioning within each state will offer consumers the ability to compare private health insurance plans to see which plan best meets their needs. Federal subsidies will be available on a sliding scale for anyone whose income is under 400 percent of the federal poverty level (just over $80,000 for a family of four). For those whose income is below the threshold to afford any coverage, an expanded Medicaid program will be available in many states to provide coverage. The big question is whether private health insurance plans and Medicaid programs will cover O&P services and devices. All indications are that most will cover O&P care, but there may be limitations and exclusions in coverage. The ACA specifically states that "rehabilitative and habilitative services and devices" are considered "essential health benefits" and must be covered. But this is a broad term and specific coverage of O&P services must be addressed at the state level. It falls to consumers and the providers who serve them to advocate at state and local levels to ensure O&P care is covered and is not unreasonably limited or restricted. Indications thus far suggest that many states will, in fact, cover O&P care, at least to some extent. Insurance Fairness for Amputees Act Twenty states have adopted O&P parity laws, thanks in large measure to the Amputee Coalition and state-based consumer and provider advocates. Typically, these laws state that if a health insurance plan covers O&P care, it must be covered at the same level as other medical and surgical benefits. The concept is modeled after the Mental Health Parity Act. These types of laws protect against arbitrary restrictions and exclusions in the coverage of O&P care. The problem is that 30 states have not yet adopted these laws, and in the states that have, these laws do not apply to employer plans that are self-funded under the federal Employee Retirement Income Security Act (ERISA). This means that the state O&P parity laws do not apply to more than half of the employer plans throughout these states. This is why federal legislation is necessary to establish a reasonable coverage standard for O&P care at the federal level, which would apply across all of the states. Last year, both houses of Congress introduced the Insurance Fairness for Amputees Act. This bill is essentially a federal O&P parity law that would apply across all the states and ERISA plans as well. It does not require coverage, but if coverage is offered for O&P care, arbitrary restrictions and exclusions in coverage would be prohibited. A new bill is being prepared for introduction in the 113th Congress. Given the changes to the healthcare system as a result of the ACA, passage of this legislation is very important to establishing and maintaining stable coverage of O&P care. Medicare Policies Having a "Chilling Effect" Ask O&P practitioners what keeps them awake at night and they will tell you it is appropriate documentation of their Medicare claims. This issue has a spillover effect with all healthcare plans that typically follow Medicare requirements. The issue involves the level of information needed to be documented by the physician in his or her file to justify payment of a Medicare claim for orthotics or prosthetics. Within the last 18 months, the Medicare program heightened its standard for physician documentation and is reopening thousands of Medicare claims across the country, denying payment and demanding repayment. While most of these claims are appealed and ultimately won by the provider, the situation has caused significant cash-flow and fiscal problems for O&P providers. One of the areas targeted by the Medicare program is the prescription of higher-end prosthetic technology. Medicare is demanding very detailed information from physicians that they are not accustomed to recording in their files. These claims are being denied at an alarming rate. Because of this, there is a sense that beneficiary access to advanced prosthetic technology is being restricted. The consumer, however, is likely unaware of this situation because the practitioner must deliver the finished prosthesis before submitting a claim for Medicare payment. And if the claim is denied, the beneficiary is protected from being required to pay out-of-pocket or return the prosthesis. Medicare O&P Improvement Act The Medicare program has many levers at its disposal to address the issue of paying only for appropriate O&P care. One of those options is for the Medicare program to determine which providers and suppliers are qualified to bill Medicare for custom orthoses and prostheses based on education, training, accreditation, and licensure status. In fact, a federal law was passed in 2000 to establish these qualifications; however, the Medicare program never implemented the law. The Medicare Orthotics and Prosthetics Improvement Act is federal legislation that has been introduced in the past two Congresses and is being prepared to be reintroduced this year. Among other things, it would establish the required levels of education, training, and experience necessary for any provider or supplier to provide custom O&P care to Medicare beneficiaries. In this manner, it would identify those providers who are truly qualified to provide this level of care to Medicare beneficiaries and link those qualifications to the ability to receive Medicare payment. This step alone would likely create a significant improvement in the level of appropriate claims submitted to the program while enhancing the quality of O&P patient care. O&P Care in the Spotlight The good news is that the level of awareness of rehabilitation and O&P care appears to be at an all-time high. The bad news is the apparent driving force behind this awareness. The steady flow of amputees and those with orthopedic injuries from a decade of war has slowed, but the prosthetic and orthotic needs of these injured service members remain. The House Committee on Veterans' Affairs has continued to focus on prosthetic care issues, holding three different hearings last year designed to highlight problems in the U.S. Department of Veterans Affairs (VA) system, and, most recently, through a roundtable discussion of the committee leadership and a number of veterans and O&P organizations. The National Association for the Advancement of Orthotics and Prosthetics (NAAOP) participated in this roundtable discussion and expressed the need for the VA to ensure that all veterans get access to appropriate technology in a timely manner from the practitioner of his or her choice. These concepts are reflected in federal legislation known as the Injured and Amputee Veterans Bill of Rights (H.R. 805 in the 112th Congress). The VA Committee is currently considering its options with respect to this legislation. The horror of blast injuries is no longer confined to foreign countries, as witnessed by the Boston bombings. A significant number of survivors of those blasts will require O&P care, particularly prosthetic care. But first, good trauma care, rehabilitation, and peer support is key. The Amputee Coalition has an established presence in Boston and is offering peer counseling and support. The Amputee Coalition recently joined with a number of national provider organizations and businesses to create the Coalition to Walk and Run Again. This Coalition is designed to provide initial prosthetic limb care to any Boston bombing survivor who is not covered or who is under-covered by insurance. Conclusion Public interest and awareness often drive public policy and, by extension, politics. By any measure, the public is far more engaged and knowledgeable about prosthetics and orthotics than at any time in the past, largely as a result of either tragic events or captivating technologies that appeal to the media and the general public. There is a robust O&P agenda to pursue in order to enhance the quality of life of O&P consumers. Peter W. Thomas, JD, is general counsel to the National Association for the Advancement of Orthotics & Prosthetics (NAAOP), counsel to the O&P Alliance, and principal with the law firm of Powers Pyles Sutter & Verville, PC. He is a registered lobbyist at the federal level and has been a bilateral transtibial amputee since age ten. For more information, visit www.naaop.org or email info@naaop.org

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