It is often observed that as California goes, so goes the nation.
For the O&P profession, the multifaceted crisis facing California practitioners should serve as an important wake-up call for the future. As the governor begins to address decades of financial woes, and a grumbling economy causes corners to be cut at every turn, O&P practitioners face an increasingly harsh environment.
“If I look at it all at one time, it’s just plain overwhelming,” said Rick Chavez, CPO, president of the California Orthotics and Prosthetics Association (COPA). “That’s why we are taking things one step at a time and responding fully every time a new issue hits us.
“Since I was sworn in, we’ve seen wave after wave of threats to our profession, and there seems to be no end in sight,” he remarked. “I am proud of the job we’re doing, but I keep wondering how long the assault is going to last and what it is that will end it.”
The latest salvo to hit California practitioners is the governor’s sweeping reform plan, the “California Performance Review” (CPR), which calls for competitive bidding for durable medical equipment (DME), orthotics and prosthetics for the state’s Medicaid population.
The report arrived at its recommendations based on the successes shown in other states, but fails to point out that the cost savings were from mass-produced items in the DME category, which are irrelevant to the O&P field.
Citing past deeds of the DME industry in states as far away as Florida, the CPR claims fraud as a determining factor for requiring competitive bidding. In fact, it specifically mentioned Florida’s $3.5 million worth of DME fraud that is incurred annually.
In 2000, California’s Department of Health Services placed a moratorium on DME provider enrollment, followed by an extensive re-enrollment process in an attempt to gain control over an ungainly 1,300 providers using the system with little oversight.
Late last year, the department also instituted reform promoted by COPA to remove DME providers from the O&P category. Before the reform, a long list of “asterisk code” items were listed under O&P that were accessible to DME providers, some of whom were supplying more than a dozen low-cost products a week to the same patient.
Rather than address the fraud issues that are abundant when neither DME nor O&P professionals are licensed in the state, the CPR recommends further restriction of the provider pool through competitive bidding as a means of fraud protection.
No evidence of fraud on the part of O&P providers, who are required to be certified to be enrolled, has ever been presented by the department. And it has shown no support for COPA’s numerous attempts to secure licensing as a means to protect consumers, bar fraud and distinguish the two professions.
COPA responded to the report in a letter last August, objecting to the CPR’s insistence on grouping DME and O&P and casting doubt on the overall ability of competitive bidding to realize long-term savings.
COPA also contacted department officials assigned to work on the CPR recommendations and found them surprised that O&P was included in competitive bidding. The intent of the CPR to limit the number of providers was also questioned by department officials, who pointed out that under current California law, only certified practitioners—a limited group—can participate as O&P providers.
Although O&P is mentioned in only one line of the CPR, the repercussions are a major headache for an already-stressed profession. “It’s unfortunate that we’ve been caught in a battle between the department and the DME industry,” said Chavez. “And, it’s ironic that they don’t…come to a support position on licensure by realizing that the reason O&P doesn’t have the fraud problems seen in the DME category is because we all have to be certified in order to participate.”
Court action is now en vogue for organizations hamstrung by legislative inaction. In one calendar year, COPA has joined two separate lawsuits: one settled in December and another just entering the discovery phase.
In the first suit, COPA joined forces with the California Medical Association and others to block budget cuts for the state’s Medicaid system, Medi-Cal. The suit was victorious, producing a preliminary injunction from the Ninth Circuit Court of Appeals stopping 5 percent cuts from going into effect Jan. 1.
U.S. District Judge David F. Levi ruled, “The decision to cut fee-for-service rates across the board without analyzing the effect on services to beneficiaries is arbitrary and violates federal law.”
No attempt at across-the-board cuts was made in this year’s budget.
“It is the first time COPA has joined a suit of any kind,” said Chavez. “Given our success, it is definitely something we will be likely to consider in the future.”
Chavez believes the legislature is sympathetic to the needs of the physically challenged, but has more faith in the court’s abilities to get things done in the current environment.
“We worked with budget subcommittee members and the administration for months to get those cuts removed, and the problem was that they were hearing from one hundred groups like COPA,” Chavez explained. “One afternoon in front of a judge accomplished more than months of meetings and letter writing.”
Learning from this experience, COPA has joined a suit against the insurer Blue Cross Blue Shield in an attempt to gain what the legislature has failed to obtain: fair treatment from insurers.
Solomon v. Blue Cross Blue Shield, of which COPA is listed as a plaintiff, has just entered its discovery phase. COPA was able to assist the suit by providing files pertaining to legislation supported by the association in favor of HMO reform, as well as documents containing complaints from the association on behalf of its members.
“The documents paint a picture of just how long we’ve been saying the same things,” said Chavez. “It is our hope that by joining this suit with other allied health professionals who face the same obstacles, we will finally see real change in the system.”
COPA is not expecting a large monetary settlement from the suit, but rather, a solid set of ground rules for the future that are court ordered and reliable.
In addition to the lawsuit, COPA is also considering legislation to enact parity for O&P services. A mandated benefits package for O&P has not been introduced in California to date, and many believe that the time is right. COPA was successful in passing legislation in 1992 to prohibit insurers from limiting devices without mandating a particular set of benefits.
Few insurers were aware of the law, which prompted COPA to distribute letters to them pointing out that policies and plans offering coverage for O&P devices but specifically excluding replacement devices are in violation of both the Health and Safety Code and the Insurance Code.
Recently, insurers have begun an aggressive practice of instituting lifetime caps on policies, raising co-pays to a prohibitive level and limiting devices. COPA has responded to these insurers and to the California Insurance Commissioner and is awaiting their response.
For almost a decade, COPA has advocated licensure for practitioners in California as a means to protect consumers. Several pieces of legislation have been introduced with varying success.
In years when no licensure efforts were made, there have been significant attempts to encroach on the O&P scope of practice by other professions, most recently the physical therapists.
In 1999, the DME retailers sponsored legislation that defined their scope of practice and included O&P in its definition. In the same year, occupational therapists supported a bill that included, “the design, fabrication or application of rehabilitative technology such as selected orthotic devices,” and “training in the use of orthotic or prosthetic devices,” as part of its exclusive scope of practice. COPA was successful in having the bill amended to remove the expansive language, and the entire bill was later vetoed by then-Governor Gray Davis.
In 2003, the most aggressive attack on the O&P profession was launched by the California Physical Therapy Association (CPTA), when a bill was introduced in the state senate that would have given physical therapists the ability to “prescribe, apply and fabricate assistive, adaptive, orthotic, prosthetic, protective and supportive devices and equipment.”
COPA assisted in defeating the legislation, which died in committee last February.
Given the state’s continued budget problems, creating a new licensing board or agency at this time is improbable. Yet, COPA continues to put the issue forward by pressing the state’s legislative counsel to make a determination as to the legal status of practitioners in California.
Earlier this year, COPA specifically asked if practitioners were in violation of the state’s pharmacy law regarding dangerous devices, a frequent charge made against O&P businesses in California. The opinion received stated that the legislative counsel considers orthotists and prosthetists to be “manufacturers” who could dispense items containing the federal warning label “Caution: Federal law prohibits dispensing without prescription or Rx only” if an exemption as a manufacturer is obtained.
No O&P businesses in California currently hold a manufacturer’s exemption from the Board of Pharmacy. A letter provided by AOPA from the Food and Drug Administration defines O&P practitioners as “service providers,” not manufacturers—leaving the profession in legal limbo, according to the legislature’s attorney.
COPA will be meeting during the winter recess to chart a course for licensure and other important issues. It is expected that the organization will create a stronger alliance with amputee and other consumer groups as it moves ahead this year.
“Unfortunately, we have learned over the years that change doesn’t occur until the consumer gets hurt,” said Chavez. “Looking around my office at patients who can’t get their devices covered by private or public payers—I think we’re there.”
Sherry Daley is the public policy coordinator for the California Orthotics and Prosthetics Association.
While AOPA, as a national organization, concentrates mainly on government relations on a federal level, it also helps state associations grappling with the same thorny issues on the state level.
Recently, AOPA has assisted California, Georgia and Ohio with issues ranging from Medicaid to licensure to PT encroachment. AOPA has helped O&P groups in these states fight situations or legislation detrimental to O&P by providing insight, guidance and previous experiences, as well as sharing other resources, such as studies, statistics and analyses on the federal level that will help the state group’s cause.
AOPA feels that it benefits the entire profession nationwide when state issues with national implications are dealt with early.
For more information, contact AOPA’s director of legislative affairs, Walt Gorski, at (571) 431-0876, ext. 209, or e-mail him at wgorski@AOPAnet.org.
November
1996
Licensure Feasibility Forum conducted
October
1997
Licensure Feasibility Forum II conducted
February
1999
COPA licensure bill introduced
DME licensure bill introduced
February
2000
First licensure bill died, new draft prepared
Second
COPA licensure bill introduced
Occupational therapists introduce expansion bill
April
2000
Second COPA licensure bill passes lower house
October
2000 Occupational
therapist bill vetoed
November
2000 Senate
holds COPA licensure bill
December
2001
Senate holds Sunrise Review Committee hearing
April
2002 Senate
holds second Sunrise Review Committee hearing
September
2002
California passes latest budget in state’s history
November
2002
Governor Davis narrowly re-elected
January
2003
Physical therapists introduce expansion bill
February
2003 Davis
recall begins
July
2003 Recall
certified
October
2003 Schwarzenegger
wins governorship
February
2004
Physical therapist bill dies