Wednesday, May 25, 2022

US-Politics: BREAKING: AOPA Files Suit Against CMS

Susi Ebersbach

Dear fellow O&P community members:
Many of you know me as Susi Funkhouser, or in the last decade- Susi Ebersbach, and we have met via affiliation through either my roles w/ POINT Health Centers of America, or Touch Bionics. Today I work with Ability Prosthetics & Orthotics, headquartered in PA and have been active in response to multiple CMS audits/reviews for our company.  I have become increasingly aware that this Medicare initiative is headed toward a legislative action as the only sane response to a CMS charged with managing budget limitations (cloaked as a response to fraud & abuse) which is not likely to result in a “fair and equitable” resolution. 
Without having been intimately involved with the AOPA initiative, I agree with their dramatic move and want to encourage all those who have been “on the fence” and reserving their discretionary political dollars to think it through and decide whether there could be any better investment for a small business’ limited resources than to back this initiative through membership? 
Without intervention, your appeals will not be resolved for at least 2 years at this point.  Can your cashflow survive? The only successful pre-emptive measures I can foresee will be a legislative action, either by Congress or Court. Both avenues require funding.  Our dollars to fight this predicament should not be fragmented at this point. 
Think it over carefully.  List out your appeals and the timeframe for decision and determine whether you have the cash to afford to wait for resolution?  If you have an alternative solution that provides more immediate and promising relief, please share, and if not, please become an AOPA member and consider contributing whatever resources you would have individually contributed to resolve your stalled payments to the largest organization collaborating for the cause. 
I am well aware of the perceived past failures and dissappointing clout of our national O&P organization.  I am also aware that much of the blame is shouldered by those who did not participate, yet were critical of the outcomes. The fact is that we are a small industry with limited negotiating leverage.  I believe that our trade organization is the best chance we have today for rescuing the industry providers and preserving quality O&P care. 
If you are an independent, quality O&P supplier this would be a very bad time to let others carry the load and live with the consequences of the outcome. I have watched the number of times this has happened before and seen many small businesses still survived, however, I doubt the outcome will be the same this time. I am only voicing my opinion but hope you will consider membership in AOPA to lend your dues to this critical issue. I’m not sure if the links in this reposted letter will still work, but Im sure AOPA will respond to your inquiries directly.
Respectfully,
Susi Ebersbach
From: American Orthotic & Prosthetic Association Date: May 13, 2013, 6:40:56 PM EDTTo: Subject: BREAKING: AOPA Files Suit Against CMSReply-To:

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>May 13, 2013 
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>Open Letter to AOPA Members Regarding Medicare RAC/Pre-payment Audits and the Complaint Filed in the U.S District Court
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>Dear AOPA Member, 
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>We are writing to inform you that today AOPA has filed suit against HHS in the Federal District Court for the District of Columbia. Our complaint seeks relief from the unfair and unauthorized actions of the Center for Medicare and Medicaid Services, primarily via actions of its RAC auditors and DME MACs relating to physician documentation requirements. 
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>AOPA has never before sued the federal government. Although many trade associations have sued the Medicare program, few have succeeded, because our laws make it difficult to prevail against the government even when, as here, the cause is worthy and the government has acted unjustly. Given the overall track record of other trade associations, you are entitled to know why your association has chosen to deploy the scarce resources derived from the dues you and other AOPA members pay to pursue this litigation.
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>First, a court may agree that CMS has acted arbitrarily and order the agency to alter how it processes claims for AOPA members. Second, regardless of what a court does, the lawsuit may induce some positive changes in the agency’s behavior. For example, CMS responded to the American Hospital Association’s recent suit challenging audits by allowing hospitals to submit new claims, without insisting that the AHA dismiss its suit in return. Third, we do not see how litigation could worsen the plight of AOPA members. Today, AOPA has stated empathically that we will not stand by when government acts inappropriately to threaten either the quality of care we provide to our patients or the economic viability of the small businesses and providers that comprise the orthotics and prosthetics profession.
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>While we did not know it 20 months ago, August 2011 was a benchmark month for the vitality of the O&P profession, and for the quality of care that we provide to our patients. During that month, the HHS Office of Inspector General released a flawed, and in some respects amateurish, report alleging fraud in the O&P field where there essentially was none. The report: (1) misunderstood that patients don’t go to their physician when their prosthesis is not working properly; (2) misunderstood that it is not unusual that most Medicare amputees may not see the ‘referring physician’ who first prescribed their prosthetic care because that physician is commonly the surgeon who amputated their limb; (3) created extensive confusion about whether bi-lateral amputees should have both prostheses on a single claim or two separate claims; (4) leapt to conclusions of fraud because claims costs had increased with a fixed number of Medicare amputee beneficiaries while
failing to recognize that Iraq-Afghanistan had prompted a quantum leap in technology (and a related incremental increase in unit cost) which together with CMS-approved O&P fee schedule increases (after years of ‘freeze’) had indeed driven per capita increases; and (5) failed to track as required by BIPA 427 whether or not care providers were, or were not, qualified providers under federal law. But the worst thing this flawed OIG report did was trigger an adverse change in the quality of patient care for Medicare beneficiaries. 
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>Someone at Medicare should have known better. CMS leadership or its DME MAC contractors should have pointed out the flaws in this OIG report and pushed back. But no one did. In fact, without any process for the stakeholder input that is guaranteed by federal law, CMS also in August 2011, through the actions of its DME MAC contractors, dramatically revised the standards by which a prosthetic claim would be judged for reimbursement approval. This was done by simply circulating unilaterally a “Dear Physician” letter. We believe that in doing so Medicare violated the law, specifically the federal Administrative Procedure Act and the Medicare Act.
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>AOPA, along with many others, including all of our partners in the O&P Alliance and the majority of our member firms, have fought at every turn over the past 20 months to try to explain and persuade CMS that its actions on this matter are unfair, contrary to the statutes and detrimental to the care provided to Medicare beneficiaries. All of this we believe was done in the name of saving Medicare dollars against the backdrop of the Affordable Care Act’s promise to extract $750 billion over ten years from Medicare providers. In addition, it ramped up commissions for RAC auditors whose independence is fundamentally compromised by the fact that they are paid a bounty based on a percentage of the claims dollars they claw back. We have met with virtually every ranking official at CMS, including three meetings with the CMS Administrator. Those of you that attended the recent Policy Forum assisted us in petitioning our Senators and House members, 35 of whom
recently signed a letter to the Secretary of HHS seeking relief for O&P and our Medicare patients. A chronology of many of the actions AOPA has taken is available for your review. But, despite knocking on every door, little if anything substantive has been done by Medicare to remedy this unworkable situation.
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>We don’t have to tell you that in a profession populated largely by modest-sized businesses, this massive ‘claw-back’ of amounts already paid, coupled with Medicare largely turning off the spigot of new payments by invoking sometimes seemingly universal pre-payment audits of prosthetic claims, has strangled the cash-flow of patient care facilities. Manufacturers of the O&P components which have been so instrumental in advancing O&P technology and the quality of patient care have found that the O&P practitioners have often had to select lower functioning components in order to reduce costs, and ultimately have been unable to pay their bills on a timely basis. Some plants formerly with two manufacturing shifts have been forced to reduce to one, layoffs have followed and some producers are looking at shifting manufacturing outside the U.S.
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>The OIG/CMS action has changed the standard of care, often forcing practitioners to choose between meeting the patient’s immediate need for a prosthesis by providing a less sophisticated device, rather than endure long delays in care triggered by the paper chase with physicians. The truth is that CMS wants physicians to provide more documentation, but isn’t willing to pay them anymore. Physicians have pushed back, refusing to provide more documentation for prosthetic care. In one sense, many physicians do not ‘have a dog in the fight.’ O&P professionals (and less directly component manufacturers) and our Medicare beneficiary patients have suffered the collateral damage as Medicare and physicians lob artillery fire over our heads.
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>We have heard so many of you say that our profession is at a critical juncture. Many patient care facilities have closed or been sold as a result of these Medicare-induced financial pressures, and you have said if we can’t find a way to get this problem fixed, the entire field is at grave risk. Under these dire circumstances, AOPA, having exhausted all other prospects for relief, has little choice but to place this matter, and the future of our profession as well as the quality of care delivered to Medicare amputee beneficiaries, in the hands of the courts. You may review the complaint AOPA has filed, with the assistance of the experienced Medicare litigation firm Winston & Strawn, and the relief AOPA has requested which appears on pages 23 and 24.
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>Our closing plea is that AOPA needs your help. This is a time when we must unite. We need EVERY O&P firm to join as a member of AOPA. AOPA has put its own financial future on the line. Please note that the relief sought in the lawsuit is only on behalf of AOPA members. You have done your share financially, but there is ONE more thing you can do to help us all. 
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>The final link in this letter is to an AOPA membership application. We urge every person reading this letter, if you agree with what we are doing, to find someone who is not an AOPA member and get them to join-join AOPA and join the cause of saving our profession. Sure, you can ignore this request. Folks in O&P have a way of going their own way, saying, “Oh, I would have done that differently.” We can’t afford that! We need to unite. We need everyone in O&P-everyone on the List Serv, every customer on every manufacturer’s buyer database - EVERYONE to join AOPA. Yes, it will cost folks some money-yes, times are very hard. But they’re not likely to get better unless we win this battle that threatens the very existence of your business. We will keep you informed of significant developments as the litigation proceeds. 
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>Sincerely, 
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>Thomas F. Kirk                                                       Thomas F. Fise
>AOPA President                                                      Executive Director 
>On Behalf Your Officers and Directors 
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>President-Elect Anita Liberman-Lampear, MA; Vice President Charles H. Dankmeyer, Jr., CPO; Immediate Past President Thomas V. DiBello, CP, FAAOP; Treasurer Jim Weber, MBA; and Members of the Board Directors:  Kel Bergmann, CPO; James Campbell, PhD, CO; Jeff Collins, CPA; Mike Hamontree; Alfred E. Kritter, Jr., CPO, FAAOP;  Eileen Levis; Ron Manganiello; Dave McGill; Michael Oros, CPO, Scott Schneider.  
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>Forward this email
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