Saturday, May 18, 2024

Special Alert: BIPA Section 427 Proposed Rule Finally Published!


Please view our video webcast and update:

After years of waiting and advocating for its publication, the Centers for
Medicare and Medicaid Services (CMS) this week finally released a proposed
rule on Section 427 of the Benefits Improvement and Protection Act (BIPA) of
2000, comments for which are due on March 13, 2017.

BIPA Section 427 states that “no payment” shall be made by the Medicare
program to any practitioner or supplier of custom orthotics or prosthetics
who is not qualified to provide this level of care. The proposed rule
broadly interprets this statute, establishing a requirement that ANY
practitioner or supplier that provides custom orthotics or prosthetics,
including physicians, physical therapists, occupational therapists,
prosthetists and orthotists, and others, must be licensed to provide
orthotics and prosthetics if the state has O&P licensure. If not, the
practitioner or supplier must be specifically trained and educated to
provide and manage the provision of custom O&P care and be certified by
either ABC, BOC or an accreditation organization approved by the HHS

This is a major milestone for the O&P profession! It treats O&P
practitioners in a similar manner to physicians and therapists for the
purpose of providing custom O&P patient care. The proposed rule also
bolsters the profession’s contention that the prosthetist’s and orthotist’s
clinical records should be considered part of the patient’s medical record,
and it further separates O&P from DME.

While publication of this favorable proposed rule is great news, there is a
downside to the breadth with which CMS interpreted these provisions of the
Medicare law. As a result, we could see opposition to this rule from
certain organizations. In addition, since the nominee for Secretary of HHS
is an orthopedic surgeon who may be sympathetic to any potential physician
resistance to this draft rule, NAAOP and its sister O&P organizations will
have to think strategically about their comments to CMS on this issue and,
above all, ensure that the rule is published as soon as possible in final
form. We cannot allow publication of this proposed rule to be a pyrrhic

There are at least two other policy issues on which NAAOP and other O&P
organizations are likely to comment. The first involves the definition of a
“fabrication facility,” which appears to conflate central fabrication and
patient care facilities. The second involves a proposal to revoke the
supplier number for any provider or supplier who submits a Medicare claim
for payment without complying with this new regulation. A more appropriate
sanction may be for CMS to simply deny payment of the claim, but further
analysis of these issues is still required.

We welcome any feedback from our members to the proposed rule, which can be
accessed here

Please visit our website at:


1501 M Street, NW

7th Floor

Washington, DC 20005-1700

e-mail: [email protected]

(800) 622-6740

(202) 624-0064 Phone

(202) 785-1756 Fax


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