January 19, 2017

NAAOP Special Alert: BIPA Section 427 Proposed Rule Finally Published

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The National Association for the Advancement of Orthotics and Prosthetics (NAAOP) has released a webcast in which NAAOP General Counsel Peter Thomas, JD, announced that a proposed rule for Section 427 of the Benefits Improvement and Protection Act (BIPA) of 2000 was published in the Federal Register on January 12. A summary of the webcast follows:

After years of waiting and advocating for its publication, the Centers for Medicare & Medicaid Services (CMS) finally released a proposed rule on Section 427 of BIPA, comments for which are due by March 13.

BIPA Section 427 states that no payment shall be made by the Medicare program to any practitioner or supplier of custom orthotics or prosthetics who is not qualified to provide this level of care. The proposed rule broadly interprets this statute, establishing a requirement that any practitioner or supplier who provides custom orthotics or prosthetics, including physicians, physical therapists, occupational therapists, prosthetists, orthotists, and others, must be licensed to do so if the state in which they practice has O&P licensure. If not, the practitioner or supplier must be specifically trained and educated to provide and manage the provision of custom O&P care and be certified by either the American Board for Certificate in Orthotics, Prosthetics and Pedorthics, the Board of Certification/Accreditation, or an accreditation organization approved by the U.S. Department of Health and Human Services (HHS) secretary.

This is a major milestone for the O&P profession. It treats O&P practitioners in a similar manner to physicians and therapists for the purpose of providing custom O&P patient care. The proposed rule also bolsters the professionís contention that the prosthetistís and orthotistís clinical records should be considered part of the patientís medical record, and it further separates O&P from durable medical equipment.

While publication of this favorable proposed rule is great news, there is a downside to the breadth with which CMS interpreted these provisions of the Medicare law. As a result, we could see opposition to this rule from certain organizations. In addition, since the nominee for secretary of HHS is an orthopedic surgeon who may be sympathetic to any potential physician resistance to this draft rule, NAAOP and its sister O&P organizations will have to think strategically about their comments to CMS on this issue and, above all, ensure that the rule is published as soon as possible in final form. We cannot allow publication of this proposed rule to be a pyrrhic victory.

There are at least two other policy issues on which NAAOP and other O&P organizations are likely to comment. The first involves the definition of a fabrication facility, which appears to conflate central fabrication and patient care facilities. The second involves a proposal to revoke the supplier number for any provider or supplier who submits a Medicare claim for payment without complying with this new regulation. A more appropriate sanction may be for CMS to simply deny payment of the claim, but further analysis of these issues is still required.

NAAOP welcomes any feedback from its members to the proposed rule.

The webcast is posted on the NAAOP website, on NAAOPís YouTube channel, on oandp.com, shared with members via email, and made available through the NAAOP page on Facebook.

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