The National Association for the Advancement of Orthotics and Prosthetics (NAAOP) has issued the following statement on the lawsuit filed by the American Orthotic & Prosthetic Association (AOPA) against the U.S. Department of Health and Human Services (HHS):
On May 13, AOPA filed a lawsuit against HHS Secretary Kathleen Sebelius in federal district court. The lawsuit alleges several violations of law by the Centers for Medicare & Medicaid Services (CMS) in connection with extensive and onerous auditing activities of CMS contractors, as well as CMS’ failure to implement statutory directives that directly link the qualifications of an O&P practitioner or supplier with the ability to be paid by Medicare. CMS has been obligated to implement and enforce these O&P provisions since 2000, but has, instead, used audits and other durable medical equipment (DME)-related tactics to address alleged overpayments, waste, and abuse.
NAAOP is not a party to this lawsuit, but our executive committee and board of directors had knowledge of this impending legal action and support it. We understand how difficult it is to prevail against the federal government in the courts, but at the very least, the filing of this lawsuit will impress upon CMS the seriousness of this matter for the O&P profession.
For the past 20 months, NAAOP, along with AOPA and all members of the O&P Alliance, have waged an aggressive campaign on behalf of our members to fix or improve the problems brought on by the August 2011 Office of Inspector General (OIG) report titled, “Questionable Billings for Lower Limb Prosthetics,” as well as a “Dear Physician” letter sent by Medicare’s contractors to all enrolled Medicare physicians. But CMS has been largely unresponsive.
CMS’ response to the OIG report was to create a new policy standard without seeking public notice and comment. This new standard specifies that the prosthetist’s records are of no value in supporting the medical necessity of a patient’s O&P treatment or care. Rather, the new policy states that it is the content of the physician’s records alone that determine medical necessity for purposes of payment of the prosthetist’s charges. Not only was this policy change issued improperly, but the standard itself is in conflict with longstanding Medicare law.
NAAOP has been advocating, along with the O&P Alliance organizations, that CMS must rescind this Dear Physician letter and clarify that prosthetists’ clinical notes are part of the patient’s medical record for purposes of determining medical necessity. CMS must finally regulate Section 427 of the Benefits Improvement and Protection Act of 2000 (BIPA), linking provider qualifications with Medicare payment for custom O&P care, even though it has failed to do so for the past 13 years.
Since NAAOP is not a party to this litigation, it will continue to keep a line of communication open with CMS officials in hopes of assisting to resolve this devastating situation for O&P providers and the patients we serve. We will continue to work in concert with AOPA, the American Academy of Orthotists and Prosthetists (the Academy), the American Board for Certification in Orthotics, Prosthetics & Pedorthics (ABC), and the Board of Certification/Accreditation, International (BOC) through the O&P Alliance on this issue, as well as a wide variety of public policy priorities on behalf of the O&P profession.
The related webcast is posted on the NAAOP website,is shared with members via e-mail, and made available through the NAAOP page on Facebook. For more information, visit NAAOP website or e-mail info@naaop.org
