From Legislation Into Reality

by Rebecca St. Andrie

"What we really need is a law!” 

Regulations abound in O&P. So it’s tempting to think that one more piece of legislative policy could solve whatever problem O&P practices are facing. 

But a law addressing that problem may already exist. Legislation, once passed, often stalls in the implementation stage. This month’s “Policy and Your Practice” takes a look at two of the biggest laws out there that could benefit O&P—once they get enforced. 

The implementation gap
Laws aren’t passed with all their details in place. For instance, a law might say that only an accredited practitioner can fit custom-fabricated orthotics. 

But what does “accredited” or “custom-fabricated” mean? These details are left up to the enforcing agency—in O&P’s case, the Center for Medicare and Medicaid Services (CMS)—to decide. 

That decision process can be a long one. CMS begins by writing draft regulations, then publishing them in the Federal Register and allowing for a comment period. 

After CMS receives comments from different sources (including AOPA), it revises and publishes final regulations. Finally, it will establish a timeline for enforcement. Only then does a law start taking effect. 

BIPA and MMA
Two laws that affect O&P currently languish somewhere in this process. BIPA, or the Medicare Benefits Improvement and Protection Act, was passed in 2000. 

Section 427 of that law contained a potential benefit to O&P. It says that only qualified practitioners or those at accredited facilities can bill Medicare for prosthetics or custom orthotics. 

Enforcing accreditation ranks as one of the top three priorities for those in O&P, according to a survey AOPA conducted (see “A Shared Vision for O&P,” February 2007 O&P Almanac). 

In that article, Tom Kirk of Hanger Orthopedic Group Inc. said “When non-qualified providers [attempt to treat patients], patients can get hurt. They have gotten hurt. They do not get the maximum [benefit] out of any device, and it gives our industry a black eye.” 

So there’s currently a law that could help O&P achieve one of its top priorities. What’s happened? 

BIPA was passed around the same time Medicare proposed trying RegNeg (negotiated rulemaking) with O&P. After RegNeg failed, competitive bidding came along. 

That huge change has occupied CMS for several years now. “BIPA just hasn’t been picked back up since then,” says Kathy Dodson, AOPA’s senior director of government affairs. 

Crucial parts of the Medicare Modernization Act (MMA), passed in 2003, are also in limbo. Most know MMA as the piece of legislation that mandated competitive bidding. However, it included important wording on accreditation and quality standards. 

MMA marked the first time CMS published O&P quality standards addressing patient care. It also required that facilities be accredited. Both of these requirements, like BIPA’s “qualified provider” statute, could improve the status of those in O&P. 

But while MMA is further along in the implementation process, these two requirements are not enforced yet. CMS has published final regulations on quality standards, competitive bidding and accreditation. But the first round of competitive bidding doesn’t include custom orthotics (the only category of O&P that might be affected). 

With CMS’s energy absorbed by implementing the current round of competitive bidding, it hasn’t published a date by which O&P facilities will need to follow these standards. MMA is almost enforced—but not quite. With the next round of competitive bidding scheduled to start in 2009, O&P is left in limbo.

Closing the gap
AOPA has learned that persistence and good relationships gradually narrow these gaps. AOPA and the O&P Alliance have recently worked to close the gaps in the cases of the two laws we’ve discussed. 

Recently, AOPA held a dinner for Sen. Harkin, D-Iowa, who has supported O&P in the past. The dinner was attended by AOPA’s Tom Fise, Kathy Dodson, Joe McTernan, and AOPA President Ted Snell, along with John Rush and Ivan Sabel, CPO, of Hanger, Charles Dankmeyer, CPO, of Dankmeyer Inc., Peter Thomas of the O&P Alliance, Tim Haake representing Ohio Willow Wood, and Pam Lupo, CO, of Wright & Filippis. Harkin listened as those who attended spoke about their concerns that the “qualified provider” statutes in BIPA and MMA were not implemented. Since Harkin helped pass BIPA, he has an interest in seeing it enforced. 

AOPA also held a breakfast for Congressman Rangel, D-NY. Rangel is chairman of the House Ways and Means Committee. At the breakfast, [those who attended] spoke to Rangel about the same concerns and will follow up with his staff. 

Building good relationships with those in Congress gives AOPA more openings to push CMS on implementing qualified provider provisions. AOPA and the O&P Alliance will keep working to educate those in Congress about O&P.

Persistence pays off
Persistence is what often pays off. While AOPA can’t mandate what’s number one on CMS’s list, persistent, professional communication can often move an item up. 

For instance, AOPA’s Government Relations department called CMS for over a year on one particular problem with skilled nursing facilities. All those calls paid off—CMS made the change AOPA requested. 

And every change establishes those in O&P as people to be consulted and listened to. For instance, AOPA and the O&P Alliance met with CMS many times about the MMA quality standards. While there are still concerns about the standards, CMS listened and cut the standards from a micro-managing 117 pages down to 17 pages. 

“Sometimes it’s suggesting a new way to do something that isn’t as expensive,” says Dodson. “Persistence and a good argument will often pay off.” 

Rebecca St. Andrie is managing editor of the O&P Almanac. 

To Get Involved:
Contact Daniel Gurley, AOPA's manager of regulatory affairs, at (571) 431-0876 ext. 212 or dgurley@AOPAnet.org. 

Find out who your representatives are and when they'll be in their home districts. For the House of Representatives, call (202) 224-3121 or visit www.house.gov. For the Senate, call (202) 224-3121 or visit www.senate.gov. 

Schedule a meeting with your representative. If you'd like to offer a visit of your facility, consult our Legislative Action Tool Kit, which includes tips for personal visits. If you will be travelling in the Washington, D.C. area, we can assist you in scheduling a meeting with your legislator.