Licensure: Setting O&P Professionals Apart from General Providers

The consensus seems increasingly to focus on acceptance of the oft-repeated homily: "Think about it: the person who cuts your hair is licensed, but the person who makes a prosthesis or straightens your daughter's spine does not have to be licensed." "It doesn't matter anymore what we think of licensure; [what we think is] irrelevant," said Jeff Fredrick, CPO, Hanger Prosthetics & Orthotics, Tallahassee, Florida, a longtime proponent of licensure. "It is here to stay. The question from a professional O&P practitioner's standpoint should be, How can we make it work for us?' The answer is by upgrading our profession and making it somewhat more limited, so that not everybody can do it." Protecting Patients, Protecting Professionals Licensure forces practitioners to pursue higher levels of education, and this is good not only for the patient, but also for the profession, said Fredrick. "We should strive to be known by our education, and education is driving the licensure issueit's not drawing tools and computersit's how highly we are educated. What we know as clinicians is what makes us infinitely more equipped to ensure that once a prosthesis or orthosis is fit on the patient, we get a rehab result that is phenomenal, not marginal. Licensure is driving us to higher levels of performance because the requisite bar has been raised." Jim Rogers, CPO, FAAOP, Orthotic & Prosthetic Associates Inc., Chattanooga, Tennessee, and chair of the American Academy of Orthotists and Prosthetists (the Academy) Licensure Task Force, noted that the Academy long has been an advocate for licensure. "We don't see it as a panacea, but as one piece of a quilt that needs to be in place to protect the profession over a whole range of areas. But that quilt is important. And licensure by state is one of the very integral parts of the quilt." Rogers pointed out that there are no more than 8,000 credentialed O&P providers in the US. Yet according to the Centers for Medicare & Medicaid Services (CMS), there are more than 140,000 providers with the right to bill for L-Codes. The list includes literally thousands of medical professionals and providers, department stores, etc. "It's a virtual potpourri of entities, very few of which have any direct connections to O&P," said Rogers. "So in the Academy's opinion, if you are licensed in your state, and your state thus defines who can do what, then you have some measure of protection against unscrupulous providers. "Although it may be true that licensure will protect practitioners, help to delineate our scope of practice, and preserve our economic base, what we're doing is protecting the patient, because ultimately, it is the patient that's harmed the most when there is no licensure protection." Lack of licensure protection also impacts the pocketbook of every taxpayer, Rogers explained. When unqualified individuals provide care that does not adequately serve Medicare or Medicaid patients, causing them to need further services later that might not have been necessary had they been cared for correctly the first time, the taxpayer pays more. In medically complex patients, the potential for real harm exists as well. Insurance premiums also can rise for the same reason, and individuals who are paying out-of-pocket likewise are forced to pay more. "Licensure creates the privileging process to provide orthoses and prostheses," said Terry Supan, CPO, FAAOP, FISPO, Orthotic & Prosthetic Associates of Central Illinois, Springfield. "For example, you have been given the privilege to drive a car with your driver's license. The right to drive that car is not automatic, and it can be taken away from you if you do the wrong thing. What licensing brings to a state is recourse for the consumer and the state to have improper care stopped. It is now a privilege for you to provide care, not an unalienable right." Gaining Support How do you go about getting licensure passed in your state? It's essential to know who's behind your initiative, and who isn't, identifying the players as early as possible, and continuing to monitor changing tides. "It can be a real challenge to identify all the people and organizations that would be friendly to licensure, and at the same time, identify all the people and organizations that would be opposed to it, and to know who they are and what their game plan is," said Rogers. "That's not quite as difficult now, because I think those battle lines are well-established. It's a little harder to know who your friends might be, and convince them to be your friends!" There are quite a few organizations with a vested interest in licensure that don't realize it, said Rogers. These groups include the American Diabetes Association, and advocacy groups for physically challenged children, such as the Children's Miracle Network, the March of Dimes, and the Cerebral Palsy Foundation. "I also think the AARP [American Association of Retired Persons] really ought to take a more careful look at advocacy along these lines," Rogers continued. "They carefully avoid medical issues unless they are directly related to Medicare reimbursement of services for their constituency, but there are certainly other issues of concern to their constituents." Licensure proponent John N. Billock, CPO/L, FAAOP, Orthotics & Prosthetics Rehabilitation Engineering Centre, Warren, Ohio, agreed, stressing the importance of consumer advocacy to support O&P licensure. "Individual practitioners should speak to patients that they feel could be good advocates and would have an understanding of the need and the process. Additionally, there are states with regional amputee organizations, as well as those for individuals with spina bifida and cerebral palsy, for example, that help support consumers of O&P care. If you have a mom who has a child with a disability, wearing lower-limb orthoses, and she comes in to speak before a legislative body, that mom can be very effectivemore so than any practitioner." No Group Is an Island Very few groups contain members with enough combined expertise to do it all alone. Most professionals don't have the knowledge and experiencenor the time to gain itto thoroughly understand their state's legislative process and to know its legislators. Joseph Elliott, CP, BOCPO, Hanger Prosthetics & Orthotics, Birmingham, Alabama, strongly advises getting to know your legislators and how your state's legislature works. "That's not a basic civics questionit's the insider knowledge of who is important in the legislature and who you need to make friends with. It's critical to have, a strong representative [i.e. a lobbyist], and you've got to know who your friends are insofar as the other medical professions, and who might be your opposition. Doing your homework is critical." Others were equally committed to the need for a lobbyist to spearhead and monitor the process. Marc David Kaufman, CPO, Atlanta Prosthetics & Orthotics, Atlanta, Georgia, noted that Georgia's lobbyist had previous experience lobbying for physicians and medical organizations, and is himself a spinal cord injury patient. Not only did he commit to working with the Georgia Society of Orthotists and Prosthetists (GSOP) in 2000, but he also remains on their payroll. "The need is ongoing," Kaufman pointed out. "You need someone to keep an eye on the legislature to see if somebody is trying to slip their own licensure bill in, amend their bill, or change their practice act to include orthotic and prosthetic services. This could happen at any time, without warning. It is essential that we be made aware of this so that we can start our lobbying efforts to work against it, or work with it, as the case may require." Supan also discussed the possibility of continuing challenges to scope of practice, even after a licensure bill clearly defines it. "In Illinois, every practice act has paragraphs saying that you can't prevent someone who is licensed from providing the care that is within the scope of practice of their profession. Thus, if you have a therapist who is providing therapy, then the orthotics/prosthetics/pedorthics act can't prevent them from providing therapy. But if they change the therapist's scope of practice to include custom-made orthoses, then the two boards are going to have to meet and discuss that and determine that you really can't do that. You can't change your scope of practice and then try to be exempted from someone else's act." In Illinois, the Attorney General's office makes the decision in cases of overlapping scope-of-practice issues. Fundraising "One of the main challenges that you face is fundraising," Rogers observed. "The first thing that you have to do with a limited pool of donors is raise enough money. That can be as little as $50,000, or it can be as much as $250,000 or more perhaps in a state like California, which is comparable to a small country. I think the norm is somewhere between $50,000 and $150,000, based on the experiences of the ten states that have gone through it." "The expense of the legislative process is certainly another significant obstacle," agreed Supan. He also mentioned some other potential problems. For instance, people who are involved with the process can feel like they're doing all the work and others who benefit are getting a free ride. Creating animosity where it wasn't before is another issue: "Typically there's not animosity between a practicing orthotist and a practicing therapist," said Supan, "but animosity can arise between the organizations because the number one goal of every organization is their goal, and includes protecting their turf or protecting their individuals. If my goal as a therapist is not the same as your goal as a prosthetist, then I'm going to defendand I want my organization to defendmy goal and my scope of practice." Licensure Opposition The Medicare Patient Direct Access to Physical Therapy Services Act (commonly referred to as "Direct Access") would remand Medicare qualified provider guidelines to the state practice acts for physical therapists, in states where they exist, Rogers pointed out. The physical therapists have practice acts in about 38 states, and many say, in effect, that physical therapists are qualified to provide some level of orthotic and prosthetic care, up to the full scope of care. "Each state provides different potential opponents based on the existence/absence of licensure for other professions and providers," said Rogers. "Obviously in states where a PT practice act exists, the PTs may already feel like they are covered, so they may not present significant opposition. But, in states where they don't have a practice act in place, there may be more opposition." The National Orthotic Manufacturers Association (NOMA) is a formidable group with an opposing viewpoint, O&P licensure proponents note. "Often providing orthotic care under the auspices of a physician, they argue that they are qualified and covered," said Rogers. "NOMA believes that education programs provided by manufacturers are sufficient for their member's sales force to provide this level of care and that any medical risks to that care are mitigated by the presence of the physician. "There's some truth in this, but it depends on what you are referring to," he continued. "There are different levels of care within orthotics and prosthetics, based on their complexity and the diagnoses requiring treatment. At some point, the knowledge required to successfully and safely provide care for certain devices and complexities demands a minimum level of education and specialized training that exceeds that of many now providing care. Many off-the-shelf devices, and devices that are custom-fit with very little or no modification do not require significant education and training. I think we're trying to determine the point on the continuum of care at which the education and specialized training an orthotist/prosthetist receives becomes necessary to insure good outcomes and patient safety. I am certain that NOMA and the profession differ on where that line is drawn, but nonetheless, we have to define it with the well-being of the patient in mind. "I have concerns when sales representatives fit spinal orthoses and other complex orthoses to patients, and I certainly don't think there are any prosthetic devices that anyone but a certified prosthetist should be fitting," Rogers added. "But there is a continuum of care here, and different professionals should fall along the continuum of care differently, according to their education and training." Referring to off-the-shelf and uncomplicated custom-fitted devices, Rogers said, "Ultimately what all have to accept, regardless of your profession, is that technology has made it possible to successfully provide some devices without harm to the patient, with less education and training than was previously required. "I don't think this specific segment of orthotic care really constitutes the bread and butter of the O&P industry," Rogers continued. "We are a clinically oriented profession providing devices custom fitted to patients after significant modifications for anatomic and biomechanic considerations, and custom designed and fabricated to meet specific protective and functional goals." The ability to make meaningful and reasonable compromise without giving away the essence of the profession is key to overcoming licensure deadlocks, he believes. Supan further explored the legalities of the NOMA battle: "When you have a group of manufacturers whose vested interest is to direct-market to the non-licensed orthotist and prosthetist, or for the majority of their care to be provided by their employees or people who are subcontracted employees, and go through a billing process from out of state, then that can circumvent the licensing law. That's part of an ongoing case in Illinois where a complaint was filed, has been investigated, and is in the litigation process right now." Elliott noted that NOMA added to Alabama's licensure pursuit problems, and in its case, compromise worked effectively. "Overcoming the opposition of NOMA and PTs takes hard work in educating the legislators as to why it is that these individuals are not qualified by virtue of being a physical therapist or a manufacturer's representative to do orthotics and prosthetics. "We accommodated NOMA by setting up a special category for them," Elliott explained. "We have licensed prosthetist and licensed orthotist categories, we have licensed assistants, and we also have registered orthotic suppliers. These are the people who work for the NOMA members. And this puts those people under the auspices of the board, limiting their scope of practice to the item produced by the manufacturer with whom they have a direct fiduciary relationship." NOMA accepted the compromise which recognized them as qualified in their specific area and limited their ability to perform any other services. Kaufman reported on the Georgia battle, where a physician running for Congress had the clout and the contacts to allow sales representatives to be excluded from the O&P licensure bill. "Because it was to his advantage to use sales reps to provide services in his practice, he opposed us strongly, so we ultimately excluded sales reps from our bill. We had to exclude any soft goods and any knee braces that are provided under the direct supervision of a physician." Licensure's Greatest Enemy The only thing we have to fear is fear itself-or apathy, which is far worse. Rogers agreed strongly. "Apathy, without a doubt, is the greatest obstacle we facea failure on the part of individual professionals to recognize the importance of licensure." Elliott, too, concurred: "I would say that the most dangerous thing that licensure advocates face is apathy amongst our peers. When a group begins the journey to licensure, it is absolutely necessary that your peers in your state understand it and support it, not just accept it. If you don't have really strong support from the grassroots of your own peers, all these other outside groupswhich can be accommodated or dealt with on a legislative basishave added material at their hands." The rest of licensure's challengesto overcome the opposition of NOMA and PTsjust takes hard work, Elliott added. Licensure's Achievements Fredrick pointed out that licensure is closing a gap. "Since some of today's off-the-shelf orthotic designs are better fitting than some previous custom orthoses, we've lost market sharetrainers, therapists and others can just send in a few measurements&Licensure is closing some of that gap by recognizing that we are clinicians, not just a set of hands performing a task that anybody can do." Elliott sees similar evidence of licensure's benefits. "There is a growing heightened awareness of O&P practitioners as healthcare professionals. Licensure supports this and has caused physicians and other medical field professionals to understand that O&P people are not just legmen or brace salesmenthat the profession is moving in a more positive and professional direction." As for seeing increased business as a result of licensure, Elliot pointed out that the number of potential patients hasn't changed, nor has his share of the market. "Licensure is not an action taken to put anybody out of businessit's an action taken to guarantee that those people who are in business are adequately educated and appropriately trained to provide safe care for the consumers." From another past perspective, Mike Allen, CPO, FAAOP, Allen Orthotics & Prosthetics, Midland, Texas, recounted an experience relating to licensure. The Texas Board of Chiropractic examiners promulgated rules several years ago that would, among other things, include all forms of splinting and supportive techniques, which by broad definition would include orthotics and prosthetics. "To make a real long story, which spans several years, very short," said Allen, "before we had licensure, I was thrown out of court because I could not prove harm to a profession that did not [legally] exist!" To Allen, the most important aspect of licensure is that it establishes O&P as a profession under the law. "So the next time&I take a board to court," said Allen, "I can demonstrate harm to a profession." In Illinois, said Supan, it's too soon to tell if licensure has achieved its goals. "You have to remember that the reason for the licensure act was two-fold: to make sure that the people receiving care received a better, higher quality of care and to mandate increased education of the people providing the care. That's an ongoing process, and to this point there have not been any complaints filed about improper care being provided." The main reason for licensure, Supan reminded, is to mandate that the education and the exam have to be the same for all future practitioners. In Illinois, with the passing of the grandfathering phase, a Commission on Accreditation of Allied Health Education Programs (CAAHEP)-accredited education and a National Commission on Orthotic and Prosthetic Education (NCOPE)-accredited residency or its equivalent are required. The practitioner also must pass the American Board for Certification in Orthotics and Prosthetics (ABC) examination. As Medicare and other payers begin recognizing licensure as necessary for reimbursement in those states which have it, other states are going to have to follow suit, Fredrick said. However, various state issues preclude development of a national licensure standard that would be consistent from state to state, raising reciprocity issues, although he pointed out that CMS is currently developing requirements for national standards from a quality perspective, rather than a licensing point of view. "What we need to do as a field," Fredrick concluded, "is make licensure work for us against other professions who want to encroach upon our expertise&it's good for every O&P practitioner." Academy Task Force to Create State Licensure Guide With ten states successfully completing the licensure process, there are many experienced mentors available for guidance on the subject, however, there are few current basic references to help other states approach licensing. The American Academy of Orthotists and Prosthetists (the Academy), is addressing the need with its new Licensure Task Force. "There are huge differences between the states when it comes to passing a licensure bill," observed Task Force Chair Jim Rogers, CPO, FAAOP, Orthotic & Prosthetic Associates Inc., Chattanooga, Tennessee. "The organization that wishes to begin a licensure initiative has to identify those things. To that end, the Academy has established a licensure task force." The Academy decided to form a task force at its national board meeting in the summer of 2005. The board set a goal to gather representatives from all ten licensure statesa "blue ribbon panel"and combine their knowledge and experience to develop a handbook to be used as a resource by state chapters or organized practitioners wishing to pursue licensure. The 11-member Task Force met in mid-October, and decided to divide the process into six stages. "Each of us took a task and doubled up into a team," Rogers reported. "We plan to compile all the information using e-mail, so everybody will be able to review and contribute to every aspect of it." Rogers pointed out that this process allows members to participate and share input in a variety of areas, rather than just one specialty. "If you have a particular knack for fundraising and your state's experience was very positive, your input is obviously going to be represented in that portion of the handbook. But someone working on the licensure language section also can contribute his/her expertise on fundraising as well. We tried to make it as efficient a process as possibleand also the least burdensome to the time commitment of the participants." The American Board for Certification in Orthotics and Prosthetics (ABC) had previously developed a model practice act that several states have used as a basis for their acts, each modifying it as needed. [For more information, visit www.abcop.org/Assets/PDF/ABCLicensureHandbook.pdf ] The Task Force intends to provide a document covering the broadest possibilities of scenarios. "Features present in the model that are not present in some state acts, or vice versa, will be highlighted, along with the reasons for their inclusion or exclusion," Rogers explained. "Anyone embarking on this initiative should be able to look at that model act and use it as a source of appropriate verbiage. If they run into opposition from one group or another, for example, they can look at a reference to see how a particular state dealt with this issue, and how their response was worded. "Hopefully with this resource, the process won't cost as much in time and money because they already have a starting point." An early 2006 publication date is anticipated. "We would like to have it ready shortly after the first of the year, so that in the spring, it would be available to any group who might have a meeting before the Academy's national meeting [March 1-4 in Chicago, Illinois]," said Rogers. "We plan to make the handbook one part of the foundation for our relationship with the chapters and the state organizations," explained Rogers. "We will present this at state meetingsespecially those that don't have licensureand around the country as the opportunity presents itself. Our goal is to have another 40 states make a decision to pursue licensure. "This is something we can do with limited resources as a professional representative of the O&P industry," Rogers concluded. "We feel that this is a professional issue, an issue about consumer protection and professionals being recognized as such through licensure." Judith Philipps Otto Judith Philipps Otto is a freelance writer who also has assisted with marketing and public relations for various O&P industry clients. She has been a newspaper writer and editor and has won national and international awards as a broadcast writer-producer.

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