by Thomas F. Fise, JD

As Congress prepares for the November elections, those in the O&P community can breathe a quick sigh of relief. Although we barely dodged the bullet in 2008, we must be alert to how potential changes in health care can affect our industry. 

In early June, Congress, already immersed in the Medicare “doc fix,” started to take a keener interest in delaying the implementation date of durable medical equipment (DME) competitive bidding. Sen. Charles Grassley (R-Iowa), the ranking Republican on the Senate Finance Committee (and former chair of that committee) proposed a bill requiring an 18-month delay for competitive bidding. This proposal stated that this delay should be paid for by across-the-board cuts including orthotics and prosthetics. AOPA immediately leapt into action, alerting both members and key leaders, asking them to tell those legislators how unfair it would be to enact this policy. 

A few days later, Chairman Pete Stark (D-California) and ranking members of the House Ways and Means Health Subcommittee, along with a list of bipartisan House leaders, introduced a bill designed to spare the Medicare O&P fee schedule of cuts to offset the $3.1 billion cost of delaying the competitive bidding program for DME. This is a significant victory for the O&P field, and an issue on which many members of AOPA, NAAOP, AAOP, ABC, and the Amputee Coalition of America worked. 

Final Legislation 
The bill (Medicare Improvements for Patients and Providers Act of 2008) was designed, among other things, to delay the implementation of DME competitive bidding for 18 months. The competitive bidding program was then scheduled to take effect in 10 U.S. cities on July 1, 2008. Contrary to the earlier strong indications that the bill might include a cut to the O&P fee schedule to pay for the cost of delaying competitive bidding for DME, the final law enacted by both Houses limited the “pay for” to DME only and O&P escaped any hit. 

Special thanks go to our many members in the O&P field, as well as ACA patient members, who made the effort to communicate with their members of Congress on this issue. Those grassroots efforts were critical to our success. 

The Stark-Camp House bill passed the House in June by a very wide margin. The legislation then got bogged down in debate in the Senate. On July 9, the Senate voted 69-30 to invoke cloture, meaning that they have stopped a filibuster and ended debate on the Senate version of the bill. Sen. Ted Kennedy (D-Massachusetts) even returned to the Senate to participate in the vote. Subsequently, the Senate passed the bill through a procedure called Unanimous Consent. 

As promised, President Bush exercised his authority to veto the largely Democratic-crafted Medicare bill, the primary objective of which was to avert a scheduled cut to all Medicare physician fees by 10 percent across the board. Shortly after receiving official notification of the president’s veto, the House convened for a vote to override it by a powerful 383-41 margin. In the evening, the Senate convened and also supported the veto override—by a margin of 70-29. 

The good news from all of this activity is that there are no payment cuts mandated for O&P—the threat that O&P would be included in that 9.5 percent cut have been successfully averted. 

The bad news is that the existing quality standards limiting reimbursement to only those who meet the standards will be replaced by a broad, essentially universal waiver of those quality standards. Further, the Secretary of HHS will be authorized to enforce those standards as to specific groups of providers at his discretion. 

Essentially, enactment of this provision shifts the action to CMS, and convincing the agency as to whom should be subject to the quality standards. AOPA will be committing itself, along with our legislative counsel at Alston & Bird (including former CMS Administrator Tom Scully), to telling CMS that negating the quality standards would be a setback both to quality of patient care and to federal efforts to fight fraud and abuse. 

What Lies Ahead 
Because it is an election year, this likely is the final piece of major health legislation enacted by the 110th Congress. Further, all indicators point to a major upheaval in health care when the new president and Congress take office. 

Medicare and health care are perceived as running headlong into a train wreck, with high costs devastating an already too-weak economy. If the Democrats prevail, they are likely to look for alternatives that will guarantee more people have access to government-supported health care, and major cuts will be necessary to pay for that. If Republicans take control, they are sure to try to perform some major surgery to try to reverse the bankrupting effect of health-care costs on both the federal treasury and employers. Look for major proposals for change similar to health-care reform initiatives put forward at the beginning of the Clinton Administration in 1993. 

Although it is hard to speculate on what shape the pivotal 2009 deliberations on health care will take, there are a few possibilities: 

• Many will propose opening Medicare up to the general public so that it becomes the fallback option for every American. 
• Look for proposals to restructure Medicare and Medicaid—not just proposals for fee cuts, but completely new fee schedules and requirements in the payment mechanism.
• Look for a reprise of different kinds of coverage options similar to the health-care alliance concept in Clinton’s 1993 plan. 
• Income tax deductions for health insurance premiums could be eliminated. 
• Proposed policy changes may not be limited to Medicare. Watch for stringent actions by private payers who are looking for quick fixes for their own budget deficits. 

This year, Rep. Rob Andrews (D-New Jersey) took the lead in introducing a federal prosthetic parity bill. The legislation was a very good start. Assuming that this bill H.R. 5615 is not enacted this year, it will almost certainly be re-introduced in 2009 with a possibility of some modest revisions on a couple of key issues relating to patient access and choice. 

AOPA has been in regular conversations with the Amputee Coalition of America. We are gathering data to quantify the costs of orthotic parity and some patient access and choice provisions. We are very hopeful that as a result on these steps, we will see an even stronger parity bill in 2009, hopefully one that includes both orthotics and prosthetics.

Tom Fise, JD, is AOPA’s executive director. Reach him at tfise@AOPAnet.org.