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    AOPA Submits Comments to CMS on CRUSH Initiative

    Wednesday, Apr 01, 2026

    AOPA & Congress Team up to Hold HHS to Task

    Below is the text of an email AOPA Executive Director, Tom Fise, JD,  sent to AOPA’s Board of Directors and allied organizations announcing the success of the sign-on letter that obtained the wide support of members of Congress responding to the full court press from AOPA members and the other O&P organizations.

    “I am pleased to enclose a copy of the final letter to HHS Secretary Sylvia Burwell, led by Reps. Ryan Costello (R-PA) and Tammy Duckworth (D-IL) and signed by a total of 26 Members of the House of Representatives.  As you can see, the letter: (1) presses HHS/CMS to revise the regulatory definition of off-the-shelf orthotics in 42 C.F.R. § 414.402 to conform with the statutory definition, recognizing the clear meaning and limitation of “minimal self-adjustment” (as previously stated in the prior letter from Senators Grassley and Harkin, October, 2014); (2) modify the OTS list and codes to eliminate from that list any device which does not meet fully and unambiguously the statutory definition of OTS orthotics including “minimal self-adjustment;” and (3) reverse the DME MAC action of August 15, 2014 as inconsistent with the APA and an open rulemaking process, and excise the resulting February 18, 2014 FAQ.

    “AOPA launched the efforts targeted at this letter, but we need to say ‘thank you’ to a large number of people for helping to carry the effort forward.  These include: (a) attendees at the 2015 AOPA Policy Forum who personally requested their legislators to send this message [and those who used AOPAVotes (roughly 700 letters) and other vehicles to write this request to their legislators]; (b) our partner organizations in the O&P Alliance and its Counsel, Peter Thomas, who fostered similar strong efforts advocating for the letter; (c) AOPA’s lobbying teams from Alston & Bird and McGuireWoods, and others for relentlessly pushing this message over the past 7 weeks; and (d) Members of Congress and their staffs, and most importantly the staffers of Reps. Costello and Duckworth, who were steadfast in advancing the letter.

    “If HHS/CMS takes this message seriously, it would mark both the conclusion to a 15-year struggle to get Medicare to implement and enforce the provisions on licensure and accreditation for O&P that Congress enacted in Section 427 of BIPA 2000, AND reverse Medicare’s misguided effort to expand the relatively narrow category of off-the-shelf orthotics beyond the strict terms of the definition Congress wisely established with the “minimal self-adjustment” criteria, remedying both errant, overly expansive rules CMS promulgated in 2007, as well as CMS’ failure to finish the proposed rule on OTS orthotics that it initiated in July, 2014 and seemingly abandoned in October, 2014.

    “So, thanks to all, and we will keep everyone posted on feedback as we receive it from CMS and key members of Congress on this issue.”

    Read the letter to HHS Secretary Burwell.

    O&P Industry Leaders Attend the Inaugural AOPA Leadership Conference

    Leadership pic 1On January 9-11th more than 150 O&P industry leaders participated in the inaugural AOPA Leadership Conference held at the Eau Palm Resort & Spa in Palm Beach, Florida. While the stunning views and great weather outside of the meeting room proved to be quite a temptation, the group remained focused on the task at hand: discussing the ways to ensure the continued success of O&P as an industry despite the current and unforeseen challenges the industry faces.

    Attendees spent the first morning of the meeting hearing from dynamic speakers who presented a snapshot of what the industry should expect in the future and the strategies that AOPA has developed to address any challenges head-on. In the next session, speakers provided global perspective on the future of the O&P industry in a worldwide marketplace. Attendees then broke out into small discussion groups where specific challenges were discussed with a focus on how the O&P industry can prepare for what the future may hold. The group reconvened to share the insight developed during the breakout sessions and then began a second breakout session that focused on various opportunities that the future may hold for the O&P industry. The first day ended with the group coming back together to provide reports on each of their breakout sessions.

    The second day of the conference began with a thorough review of the issues that were identified as crucial to the future of O&P during the breakout sessions from the previous day. The program continued with presentations and discussion regarding the future reimbursement landscape for O&P, as well as presentations that focused on perspective from the insurance industry, the role of the FDA in O&P, and the potential for alternate delivery models for O&P services in the future.

    Charles Dankmeyer, Jr., CPO, AOPA President, ended the conference with a recap of the many accomplishments that had occurred in just one and a half days and encouraged the O&P leaders in attendance to make sure that the discussion did not end after the meeting; that the meeting was just the beginning of many more discussions and efforts to ensure the success of the O&P industry for many years to come.

    To learn more about the inaugural AOPA Leadership Conference, read the preview article that was published in the January 2015 O&P Almanac and look for the full conference recap that will be published the subsequent issues of the O&P Almanac.

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

    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.

    Next Medicare Open Door Forum to Discuss the CMS Proposed Physician Documentation Template Scheduled for June 13, 2013

    The Centers for Medicare and Medicaid Services has announced that the second of several Open Door Forums to discuss the proposed physician documentation template for O&P services will be held on Thursday, June 13, 2013 from 4pm-5pm EDT.

    AOPA encourages all of its members to participate on this call and provide feedback to CMS regarding its proposed physician template.  AOPA will be represented on the call and is developing an alternate template for submission to CMS.

    Questions regarding this issue may be directed to Joe McTernan or Devon Bernard via email.

     

    AOPA Files Lawsuit Against CMS

    American Orthotic & Prosthetic Association Files Lawsuit Against Medicare Arising from Unfair Medicare RAC/Pre-payment Audits, Where No Fraud Exists, and Challenges Unlawful Changes to Medicare Standard for Care of Medicare Amputees

    Today, the American Orthotic and Prosthetic Association (AOPA) filed suit against HHS/Medicare in the Federal District Court for the District of Columbia, seeking 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.

    AOPA President, Thomas F. Kirk stated, “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.”

    AOPA’s suit arises with respect to Medicare actions that began in August 2011 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.

    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. Then CMS contractors/auditors proceeded to apply this ill-conceived new standard retroactively to claw back money on claims which no one asserts involved any fraud, but which originated years before CMS contractors devised the new “standard.”

    AOPA has recounted efforts O&P has 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. The introduction of the new ‘standard’ and audits were 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. RAC auditors’ independence is fundamentally compromised by the fact that they are paid a commission based on a percentage of the claims dollars they claw back. Last month, thirty-five members of the U.S. House recently signed a letter to the Secretary of HHS seeking relief for O&P and our Medicare patients. AOPA’s lawsuit maintains that 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 any more. According to AOPA Executive Director, Thomas F. Fise, “(M)any 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.”

    Review the complaint AOPA has filed.