The Department of Health and Human Services announced this afternoon its guidance on the critically important issue of what services will be considered as included in the essential health benefits package under the Affordable Care Act (ACA). Clearly, there is a range of opinions on the ACA, and whether it should have been enacted in the first place, or now repealed, or overturned in the courts. However, the essential health benefits issue is so critical for O&P because of the way the law was written and enacted, and the fact that the terms used in the law are not "orthotics and prosthetics," but "rehabilitative and habilitative services and devices." If O&P had not succeeded in convincing HHS policymakers that O&P fits within the term, "rehabilitative and habilitative services and devices," there would be no requirement (and therefore no assurance) that insurance plans operating under the federal law would have to include any provision whatsoever for O&P benefits.

Today's briefing went a long way to answering this critical question of whether both orthotics and prosthetics will be included within essential health benefits. The answer is "yes, with reservations." That is because HHS has chosen to take a "benchmark approach" to defining what are essential health benefits. Upon quick review, it appears that key point is that HHS has assumed a "benchmark approach" to essential health benefits, in essence, punting to the states and allowing them to select from 4 different permutations of leading plans to extract what is an essential health benefit for that state.  AOPA's concern with this approach is that it makes it a moving target. Instead of telling plans what must be offered, this allows these very same plans to define the requirements of the federal plan by what they include in the private sector plans on a state-by-state basis. 

Four Benchmark Plan Types

Our analysis of offerings that exist today suggests that the following four benchmark plan types for 2014 and 2015 best reflect the statutory standards for EHB in the Affordable Care Act:

(1) the largest plan by enrollment in any of the three largest small group insurance products in the State's small group market;

(2) any of the largest three State employee health benefit plans by enrollment;

(3) any of the largest three national FEHBP plan options by enrollment; or

(4) the largest insured commercial non-Medicaid Health Maintenance Organization (HMO) operating in the State.

HHS intends to assess the benchmark process for the year 2016 and beyond based on evaluation and feedback.

To reflect the State flexibility recommended by the IOM, under our intended approach, States are permitted to select a single benchmark to serve as the standard for qualified health plans inside the Exchange operating in their State and plans offered in the individual and small group markets in their State.

While this is not the final word, we are in much better position being "in" the HHS recommended list, than if we were on the outside, trying to fight our way onto the list. Whether ACA ever takes on the full force of implemented law, O&P providers and patients can rest easier now that they are less likely to find themselves and the viability of their businesses severely compromised by the new law.

The only direct reference to orthotics and prosthetics is a very good one.  In the bulletin, on the carry-over paragraph from page 4 to page 5 it is stated:

"For example, across the markets and plans examined, it appears that the following benefits are consistently covered: physician and specialist office visits, inpatient and outpatient surgery, hospitalization, organ transplants, emergency services, maternity care, inpatient and outpatient mental health and substance use disorder services, generic and brand prescription drugs, physical, occupational and speech therapy, durable medical equipment, prosthetics and orthotics, laboratory and imaging services, preventive care and nutritional counseling services for patients with diabetes, and well child and pediatric services such as immunizations. As noted in a previous HHS analysis, variation appears to be much greater for cost-sharing than for covered services."

This decision, in stating that O&P is among services like physician visits as benefits that "are consistently covered," marks a victory for all of O&P-patients, patient care facilities and manufacturers.

On the positive side, it doesn't get much better than being grouped with physician office visits, in terms of being essential.  So, at least for the present, this looks like a win--definitely a win for orthotics which, because of lack of clarity in the Institute of Medicine Report, we had feared might have been in jeopardy.  But it doesn't satisfy in terms of feeling a level of certainty, both because the standard is subjective to respective states, and because of the moving target aspect. For example, what is in the benchmark plans this year, might not be in three years from now.  This is not a proposed rule, it is a direction, and a fuller more specific rule will have to fill in more details and in some respects may kick some things down the road.  There will be an opportunity for comments, of which AOPA will want to avail itself. Please send your comments on the bulletin by January 31, 2012 to: EssentialHealthBenefits@cms.hhs.gov.

O&P is accorded the highest possible status under this document.  There is no bad news for O&P in this document, and in fact, implicit is that any qualifying plan will almost certainly include both O&P--it's all good.  It is just that it is amorphous. It doesn't feel like what we thought the essential health benefits process would do--namely to say "these things are so basic that they must be included in any plan that is going to be part of federally endorsed healthcare.  The HHS result is probably not what legislators thought they were going to see happen when they instructed HHS to write this rule.

AOPA has identified 3 documents from HHS-and has provided the links below for your further review.

1. http://cciio.cms.gov/resources/files/Files2/12162011/essential_health_benefits_bulletin.pdf   FULL DOCUMENT

2.  http://www.healthcare.gov/news/factsheets/2011/12/essential-health-benefits12162011a.html    PRESS MATERIALS

3. www.AOPAnet.org/Essential_Health_Benefits_Bulletin.pdf   Statement from HHS Press Room.

All parties across the field are entitled to take pride in this decision and the roles they played in helping make it possible.

AOPA commissioned a survey by the Society for Human Resource Management to rebut bad data provided by the Department of Labor (DOL) on the prevalence of the O&P benefit in employer health plans. We worked with Congressional staff to generate expressions of support for O&P's inclusion, and this topic was underscored in hundreds of visits with members of Congress and staff during the 2011 AOPA Policy Forum.   AOPA president, Tom DiBello, CO, FAAOP engaged in an exchange in letters with HHS Secretary Sebelius over the DOL study.

Representatives from AOPA, the Amputee Coalition (AC) and Hanger met directly with the HHS staff writing HHS' rules in August. We provided data for the Institute of Medicine report on the essential health benefits question, and once that report was issued AOPA presented testimony at the HHS provider listening session in Washington, DC. AOPA recruited and encouraged its members and their patients to advocate the importance of including O&P as part of the essential health benefits package at many regional listening sessions held by HHS around the country.

But many others in O&P certainly did their share. The O&P Alliance made a major contribution and its Counsel, Peter Thomas, was relentless in underscoring active intercession on this issue. Alliance partners, for example, Academy Executive Director, Peter Rosenstein, testified at the Washington, DC listening session, and AAOP members also testified at regional listening sessions and made countless other contributions. The Amputee Coalition likewise was a staunch advocate on behalf of its amputee constituents. And AOPA members themselves got the message and delivered it countless times to key policymakers.

While pleased with today's report from HHS, which is open for further comment and consideration, we recognize that our work must continue until the status of O&P within the essential health benefit package is finalized and assured. That work will continue in 2012. But it is very nice to be able to conclude this year with a very major step forward in the right direction on behalf of our patients and in recognition of the critical nature of the industry to America's health care.

Thanks to all for your efforts.