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Special Alert: BIPA Section 427 Proposed Rule Finally Published!

After years of waiting and advocating for its publication, the Centers for Medicare and Medicaid Services (CMS) this week finally released a proposed rule on Section 427 of the Benefits Improvement and Protection Act (BIPA) of 2000, comments for which are due on March 13, 2017.

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 that provides custom orthotics or prosthetics, including physicians, physical therapists, occupational therapists, prosthetists and orthotists, and others, must be licensed to provide orthotics and prosthetics if the state 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 ABC, BOC or an accreditation organization approved by the 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 profession’s contention that the prosthetist’s and orthotist’s clinical records should be considered part of the patient’s medical record, and it further separates O&P from DME.

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.

We welcome any feedback from our members to the proposed rule, which can be accessed here.

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