Two Leading Senators Write CMS to Support AOPA View, and Insist That CMS Observe Narrower View of “Minimal Self-Adjustment” in OTS Orthotics

October 20, 2014

Read the important letter to CMS Administrator Tavenner from Senators Chuck Grassley (R-IA) and Tom Harkin (D-IA). The letter speaks for itself, but its essence is to directly challenge CMS for exceeding the simple and straightforward statutory language “minimal self-adjustment” in defining off-the-shelf orthotics. These leading legislators, both of whom were in the Senate about a decade ago when Congress enacted the MMA statute that included the term “minimal self-adjustment” as part of the critical language defining very limited competitive bidding authority for orthotics, point out that there is no justification for CMS (in its regulations) to have expanded that definition to include adjustments by either the caregiver or a supplier. Senators Grassley and Harkin were, after all, present when the text was written and can readily attest to what the “Congressional intent” was in using these words. They conclude that CMS should narrow the regulatory definition in 42 CFR section 414.402 to conform with the plain language of the statute AND reduce the list of off-the-shelf orthotics commensurately to reflect only those items which the patient can use with “minimal self-adjustment.”

We believe this is a powerful message to CMS that the agency’s actions in these OTS matters are being closely watched. AOPA, through the efforts of many AOPA Board members as well as staff and our lobbying team, started the work back in February that resulted in this letter. While many folks deserve a thank you and credit for their efforts over the past eight months, we must give special kudos to two persons. Mike Park from Alston and Bird who represents AOPA is a former staffer from the Senate Finance Committee who has spearheaded this effort, through many conversations with staff for both Senators Harkin and Grassley (and probably 20 other Senate offices) AND we want to thank AOPA Board Member Don Shurr, the one and only individual on the ground in Iowa who helped generate letters to both Senate offices authored by himself and fellow Iowans he identified and recruited!

This letter is completely consistent with the comments AOPA submitted in the recent CMS OTS proposed rulemaking, along with over 500 parallel comments from AOPA members, their patients, and several other medical organizations. We were anxious for this letter to have reached the agency and their key executive personnel in advance of an October 21 meeting set up by the O&P Alliance with CMS Chronic Care Director Laurence Wilson, who has authority over the competitive bidding and OTS activities of CMS.

Obviously, we will keep you posted on responses to the letter, on the Hill, and from CMS. Thank you’s are in order to Senators Grassley and Harkin – any AOPA Members who are so inclined are welcome to generate a quick note.

Read the letter to CMS here.