A More Diverse and Divided Congress, New Opportunities for Advocacy
Updated Legislative and Advocacy Priorities
By Alpha Lillstrom Cheng, JD, MA
In preparation for each new Congress, the PPS Government Affairs Committee (GAC) meets to evaluate the legislative and advocacy priorities of the Private Practice Section (PPS) and prioritize policy issues and goals to address with the incoming Congress.
In early December 2018, the GAC and some members of the PPS Board met for two days to discuss and evaluate which issues should be priorities for the Section’s advocacy efforts. Some issues remained the same, but applying the lens of the incoming congressional makeup and considering ripening issues, a few changes were made. The following are highlights of the chosen priorities.
As a result of having addressed the therapy cap in 2018, the Section now has the opportunity to refocus its advocacy energies on other issues, one being to achieve legislation that allows physical therapists to privately contract with Medicare patients. With a number of freshman members of the 116th Congress expressing interest in Medicare-for-all or lowering the eligibility age for Medicare, the time is ripe to make sure that those conversations also consider patient-focused flexibilities such as allowing for physical therapists to opt out of Medicare or privately contract with the Medicare-eligible beneficiaries who seek their services; the Section’s participation in these conversations will not include advocating for significant changes to Medicare eligibility. The GAC also decided to focus advocacy efforts on influencing payment reform proposals while continuing to fight for fair and equitable payment for physical therapists and physical therapist assistants in private practice across the health care continuum. We will continue to address and attempt to mitigate the negative effects associated with physician self-referral.
In December 2016, it became legal for physical therapists practicing in Health Professional Shortage Areas (HPSAs), Medically Underserved Areas (MUAs), and rural areas to use locum tenens to provide continuity of care to their Medicare beneficiary patients. This Congress, we will attempt to build on the success of our previous efforts and pursue the expansion of the locum tenens provision of Medicare to include physical therapists practicing in all communities nationwide.
Technology and Telehealth
The adoption and recognition of the value of telehealth has been embraced these past few years—across the political spectrum, by private payers and regulators. In February 2018, a provision allowing Medicare Advantage plans to offer telehealth as a basic benefit became law. PPS supported this policy and is working with the sponsors of that legislation to update the bill language to reflect the priorities of the Section. We expect that the favorable winds in support of telehealth will be maintained, and there will continue to be bipartisan legislative efforts as well as regulatory interest in expanding coverage for federally funded care provided via telehealth. Therefore, GAC reiterated its goal to achieve legislation that requires Medicare and federal health plans to provide parity for both coverage and payment for physical therapist services through telehealth. Expanding on that, we will also evaluate opportunities for the inclusion of physical therapists in legislation that promotes the use of technological innovations in health care.
As physical therapists were added to the types of providers eligible to participate in the Merit-Based Incentive Payment Program (MIPS) beginning in 2019, the GAC decided that, in order to prepare for the seemingly inevitable requirement that physical therapists be scored on their use of Certified Electronic Health Record Technology (CEHRT), the Section should promote legislation that supports the utilization of electronic health record technology by physical therapists. Achieving this would level the playing field with physicians and other health care providers who have previously received monetary incentives and support for their adoption of CEHRT.
Health Coverage Principals
Unlike the 115th Congress’s focus on repealing and replacing aspects of the Affordable Care Act (ACA), the 116th Congress is likely to focus on addressing aspects of the ACA that have acquired bipartisan support, while also evaluating patient-focused policies. As a result, the GAC decided that the Section should focus efforts on addressing and mitigating the negative effects of market control on physical therapists in private practice and their patients, including opposing networks and policies that unreasonably limit patient access and choice. Focused on supporting patient access to independent therapists, the Section is also going to pursue elimination of arbitrary limits to access and obstruction of payment for services provided by physical therapists while also supporting consumer opportunities and choice by increasing transparency of coverage across all payers and health care provider pricing. While pursuing these goals, we will communicate clearly to legislators and regulators that physical therapy must remain an essential health benefit (EHB) in all insurance plans while also advocating to retain guaranteed access to insurance for those with preexisting conditions as well as protect the ban on rescission for those who do have coverage.
It has become more common for entities in the health care space to evaluate and consider how the care they provide impacts the health of their communities and larger social structures. In pursuit of utilizing rehabilitation therapy to improve population health, the Section will support policies that empower physical therapists to evaluate and support healthy and independent lifestyles and to promote mobility throughout the lifespan. This focus will include promoting physical therapists as providers of preventative and wellness services as well as managers of chronic disease.
Small Business Issues
The Private Practice Section of the American Association of Physical Therapists (APTA) is a trusted and respected representative of physical therapists who are both skilled practitioners and small business owners. Many members of Congress are eager to show that they are responsive to the economic needs of their constituents by supporting legislative efforts that bolster opportunities for small businesses. The Section plans to share the experiences of PPS members with members of Congress in order to advocate for policies such as supporting standardized processes to promote administrative simplification, as well as asking legislators to address physical therapy workforce issues including cost of education through the pursuit of federal programs to reduce student loan burden. We will also monitor, respond to, and participate in tax reform efforts that benefit physical therapists in private practice. Finally, the GAC prioritized supporting opportunities for small businesses to purchase health insurance across state lines and advocating for the expansion of Association Health Plans and group purchasing of health insurance.
For a full listing of the Legislative and Advocacy Priorities for the 116th Congress, check out the Advocacy tab on the PPS website.
Historic Makeup of the 116th Congress
The 116th Congress is more ethnically diverse than previous Congresses. It also has a record-breaking 127 women in its ranks, 102 of whom are members of the House of Representatives. The 116th Congress has 25 women senators, meaning for the first time in history, one-quarter of the members of the U.S. Senate are women. Six states now have two women senators: Arizona, California, Minnesota, Nevada, New Hampshire, and Washington.
This Congress also has the largest number of new members in over a decade who have served in the military or in the Central Intelligence Agency (CIA). These 22 new members who served in Iraq and Afghanistan are seated on both sides of the aisle, and they are expected to advocate for veterans’ access to services through positions on the committee as well as in conversations with regulators as and in public spaces such as in town hall meetings.
The political, ethnic, prior-career, and gender diversity of the incoming Congress will impact which issues are evaluated as well as acted on legislatively.
In the House of Representatives
In the 2018 midterm general election, Democrats won 235 seats and Republicans won 199 seats. The Democrats plan to make the most of their sizable majority in the House for the 116th Congress by bringing up and introducing bills on issues that were sidelined this past Congress. Despite public declarations by many newly elected Democrats, after many internal negotiations that included leadership term limits, on January 3 Nancy Pelosi (D-CA-12) was elected to be the Speaker of the House. The Majority Leader is long-time number two Democrat Steny Hoyer (D-MD-5). Former Speaker of the House Paul Ryan (R-WI-1) did not run for reelection, so his long-time number two, Kevin McCarthy (R-CA-23), is now Minority Leader.
Each party chooses who will be the chair or ranking member on committees based on seniority and internal negotiations. The Democrats assigned former ranking members Richard Neal (D-MA-1) to chair the House Ways and Means Committee, Frank Pallone (D-NJ-26) to chair the House Energy and Commerce Committee, and Nydia Velázquez (D-NY-7) to chair the House Small Business Committee. Mark Takano (D-CA-41) is the new chair of the House Veterans Committee. Republicans have shifted former committee chairs to the role of Ranking Member: Greg Walden (R-OR-2) is the Ranking Member of the Energy and Commerce Committee; similarly, Kevin Brady (R-TX-8) is the Ranking Member of the Ways and Means Committee, Steve Chabot (R-OH-1) is the Ranking Member of the Small Business Committee, and Phil Roe (R-TN-1) is the Ranking Member on the Veterans Committee.
At the time of this writing, the full membership of the House committees of jurisdictions were yet to be determined. At the beginning of each new Congress, committee memberships change to replace previous members who do not return. When the power of the majority shifts from one party to the other, committee memberships are also shuffled to reflect the reallocation of spots held by members of each party. The Democrats will now hold more seats on each committee than Republicans. On the House Ways and Means Committee a minimum of 14 members will change. This is because 10 Representatives (eight Republicans and two Democrats) retired/were primaried and four sitting Republican members of the committee lost their seats in the general election: Peter Roskam, Health subcommittee chair (IL-6); Erik Paulsen, Health subcommittee member (MN-3); and Carlos Curbelo (FL-26) and Mike Bishop (MI-8). On the House Energy and Commerce Committee a minimum of seven members will change—six of whom (five Republicans and one Democrat) retired at the end of this Congress and one sitting (Republican) member, Health subcommittee member Leonard Lance (NJ-7), lost his seat.
In the Senate
As expected, the Republicans retained control of the Senate, winning 53 seats in November. Democrats won 47 seats. Senator Mitch McConnell (R-KY) has retained his position of Majority Leader. Senator Chuck Schumer (D-NY) was elected by his colleagues to continue as Minority Leader. The leadership in a few committees whose jurisdictions are relevant to PPS has changed. Due to the retirement of long-time chairman Orrin Hatch, the Finance Committee is now chaired by Sen. Chuck Grassley (R-IA); the Ranking Member will remain Ron Wyden (D-OR). The Health Education Labor and Pensions (HELP) Committee leadership will not change—it will continue to be chaired by Lamar Alexander (R-TN), and Patty Murray (D-WA) will remain the Ranking Member. The Senate Veterans Committee will also remain the same with Johnny Isakson (R-GA) at the helm and Jon Tester (D-MT) as Ranking Member. Finally, the Senate Small Business Committee is now chaired by Marco Rubio (R-FL) while Ben Cardin (D-MD) retains his spot as Ranking Member.
There are six new members of the Finance Committee: Catherine Cortez Masto (D-NV), Steve Daines (R-MT), Maggie Hassan (D-NH), James Lankford (R-OK), Sheldon Whitehouse (D-RI), and Todd Young (R-IN). There are three new members of the HELP Committee: Mike Braun (R-IN), Mitt Romney (R-UT), and Jacky Rosen (D-NV). Newly elected Senators Marsha Blackburn (R-TN), Kevin Cramer (R-ND), and Kyrsten Sinema (D-AZ) were added to the Veterans Committee. The Senate Small Business Committee also added three newly elected senators to its ranks: Josh Hawley (R-MO), Mitt Romney (R-UT), and Jacky Rosen (D-NV).
Impact on Legislative Priorities
As a result of the “split” of political affiliation, the House and Senate will spend a lot of time pitted against one another during the 116th Congress. Democrats in the House are eager to stand up to what they see as the Administration’s efforts to dismantle the Affordable Care Act. They will do so by pushing provisions to shore up protections for those with preexisting conditions, protecting EHBs, funding health insurance subsidies, and more. House Democrats will do this even though it’s not likely they will be able to turn those bills and policy ideas into law since the Senate is still controlled by the Republicans and is under no constitutional obligation to take up bills passed by the House. Instead, the upper chamber is likely to ignore the House’s efforts or actively work to water down the House’s more liberal policies. As you know, identical bills need to pass both chambers before being sent to the president’s desk to become law.
This means the policies with the best chance to become law will be those with strong bipartisan support. A perfect example is the growing support for telehealth policies. Technology is advancing, more rural areas are building the necessary infrastructure, and using these technologies has been shown to improve outcomes and save money.
However, some of PPS’s legislative priorities are supported predominantly by one party or the other. A prime example is the bill to remove physical therapists (PTs) from the In-Office Ancillary Services Exception (IOASE), which is supported exclusively by Democrats. With the Democrats in charge in the House, there is a much higher chance of the topic being discussed in the House Energy and Commerce or Ways and Means committees. Additionally, as policymakers consider how to modernize the Stark Law and the anti-kickback statute to allow for care coordination and bundled payments, they will also need to reevaluate the IOASE. That’s our chance to push the issue and work to remove PTs from the exception. On the other side of the aisle, there is exclusively Republican support for legislation that would modify Medicare’s opt-out policy. As previously mentioned, we hope to discuss the issue in the context of any debates to modify Medicare eligibility.
In addition to our conversations with legislators, which will be guided by the Legislative and Advocacy Priorities for the 116th Congress, we will have a lot of work to do to educate the new members of Congress and their staff about the value of physical therapy. It is also likely that some of the new members assigned to committees of jurisdiction will have little or no background in health care policy. This provides PPS with a great opportunity to educate those new members about the value of physical therapy in a private practice setting. If you are a current PPS Key Contact, thank you for your continued engagement and advocacy. If you’d like to join the team, please reach out to learn if there is a vacancy in your district. The more voices we have as part of the chorus, the more effective our advocacy can be.
Alpha Lillstrom Cheng, JD, MA, is a registered federal lobbyist and a principal in the firm Lillstrom Cheng Connolly, which has been retained by PPS. An attorney by training, she provides guidance to companies, nonprofit organizations, and political campaigns. For six years, she served as Senior Policy Advisor and Counsel for Health, Judiciary, and Education issues for Senator Jon Tester (Montana) advising and contributing to the development of the Affordable Care Act, as well as working on issues of election law, privacy, government transparency and accountability. Alpha has also directed Voter Protection efforts for the U.S. Senate races of Bob Casey, Al Franken, Russ Feingold, Mark Begich, and Katie McGinty. She was the policy director during first campaign of former Senator Al Franken, and was hand-picked to be the Recount Director for his eventual 312-vote win in 2009.