As was stated in our notice last week, AOPA greatly applauds CMS for finally releasing the Proposed Regulation under BIPA 427. The proposal is far from perfect. That, coupled with: (a) the start of the new Trump Administration and the prospect that the Administration could easily view the Proposed regulations unfavorably as an effort to regulate business; and (b) the fact that all signs indicate there is likelihood of several business interests in potential opposition to the rule make it critically important that AOPA, AOPA members and everyone in the prosthetics and orthotics community provide thoughtful and comprehensive comments by the March 13 deadline.
The AOPA Board of Directors met on Monday, January 16 to discuss key aspects of AOPA’s position. The most dominant takeaways from those deliberations were that:
- AOPA will establish a 2-3 week “listening period” when we will invite and encourage AOPA members to review the ten or so categories of potential concerns which likely will need to be addressed in AOPA’s comments, AOPA will be surveying members, that is, inviting input from members around a series of questions we will frame around aspects of the proposed regulation; and
- AOPA has created a committee of Board members composed of 3 patient care professionals and 1 orthotic manufacturer—all four AOPA Board members– to guide interim decision-making on this issue.
We have asked AOPA’s outside legal counsel, Alston & Bird, to prepare a comprehensive summary of the BIPA proposed rule, which may be viewed by clicking here. We also urge you to provide your feedback using the AOPA listening period survey/input tool. Click here to take the survey.
AOPA will be listening, securing your input before formulating our comments between now and the end of January. At that point, AOPA will also prepare a mechanism to facilitate members submitting their own comments to CMS on the proposed regulation.
In closing, we note with interest two concepts highlighted in a recent article by BNA about the proposed BIPA 427 reg.
A CMS spokesman told Bloomberg BNA, the proposal began appearing on the CMS regulatory agenda around the time of a 2013 letter to the Department of Health and Human Services from 35 House members suggesting that implementing the law could reduce fraud.
Click here to view the letter. Those who attended AOPA’s 2013 Policy Forum and urged legislators to sign this letter can now see how their advocacy delivered results. (Mark your calendars for the 2017 AOPA Policy Forum, May 24-25—you CAN make a difference!)
A beneficiary advocate, however, expressed concern that implementation of strict requirements on practitioners and suppliers could harm beneficiary access to needed items. “For example, qualified suppliers who submit claims for equipment that were not furnished by an entity that meets these requirements risks revocation of their Medicare enrollment and eligibility to submit claims for any DMEPOS items or services,” Ashkon Roozbehani, an attorney for the Center for Medicare Advocacy, told Bloomberg BNA. “A reduction in the number of qualified suppliers available to a beneficiary in their locality may result in loss of access to otherwise unattainable medically necessary items and services.”
A very important tactical issue in light all of the above, and which is included in the “AOPA Listening Survey” is that it appears there may be as many as six groups that potentially might oppose the Proposed BIPA regulation. So, among other topics, AOPA will be seeking your thoughts including crystallizing the tactical choice between the very difficult odds in the new Administration of pulling through the proposed regulation applicable to all those persons essentially as written vs. an improved prospect if we are open to some give and take to solidify support (and blunt the poignant criticism that this is an anti-business regulation) by at least some of the potential opponents—do we take a cue perhaps learning from the long history of negotiated rulemaking conflict, etc.,, or do remain absolutely resolute on the terms exactly as written, even if doing so greatly diminishes the prospect of getting any BIPA 427 qualified provider rule through the process to have the force of law? As noted above, AOPA has created a committee of Board members composed of 3 patient care professionals and 1 orthotic manufacturer—all four AOPA Board members– to guide interim decision-making on this issue and all content aspects of its position after reviewing AOPA member input and feedback.