A Steady Beat of the Drum
By Alpha Lillstrom Cheng, JD, MA
In the May issue, I walked you through the Section’s legislative and advocacy priorities for the 117th Congress.
While Congress is far from returning to “business as usual,” lawmakers and their staff are settling into a rhythm. This has allowed us to have in-depth conversations about the wide range of issues that impact the Section’s members, and for you as constituents and providers to engage with your elected officials using videoconferencing, in-person meetings, as well as clinic visits over the August recess. These advocacy conversations have made an impact. Here are some of the areas in which we’ve made progress. The text in bold has been taken directly from the Section’s advocacy priorities.
The Section remains focused on efforts to influence payment reform proposals and continue to fight for fair and equitable payment for physical therapists and physical therapist assistants in private practice across the health care continuum. For some issues, legislation has already been introduced and we are working to gain cosponsors and pursue passage of the bill language that would provide the most impact; in other areas we are lobbying lawmakers to champion our cause and lead legislation that would address the needs we have identified. Where relevant, we also engage with regulatory bodies—including the Center for Medicare and Medicaid Services (CMS)—to mitigate Medicare payment policies that undermine the importance and value of physical therapist and physical therapist assistant care as well as its impact on patients and their communities.
In the 2022 Medicare Physician Fee Schedule (MPFS) proposed rule, CMS adjusted the conversion factor and some code values, resulting in a cumulative reduction of physical therapist reimbursement by about -3.5%. (Please note that reimbursement changes experienced by individual clinicians or practices will vary because actual payment depends on several factors such as locality-specific rates, patient mix, and the specific procedure codes billed.) The section will of course challenge this reduction in the comment letter it files with CMS. However, just like last year, it is more likely that Congressional intervention will be needed to address this issue. Efforts to stave off reductions in Medicare reimbursement include a letter sent by PPS and 108 other stakeholders that urged Congress to maintain stability within the MPFS by renewing for 2022 and 2023 the 3.75% increase to the conversion factor they implemented for 2021.1
Medicare’s locum tenens policy enables qualified providers to be absent from their clinic while also ensuring that their patients can continue receiving care. In 2016, PPS lobbying efforts and grassroots engagement resulted in a change in law2 that partially addressed the needs of physical therapists working in outpatient settings. Since then, private physical therapists practicing in rural, medically underserved, and health professional shortage areas can utilize substitute billing privileges (also known as the locum tenens provision) to hire a qualified substitute physical therapist for up to 60 days on a per-diem basis to treat and bill for care provided to their Medicare enrolled patients. However, the need for a physical therapist in private practice to hire a locum tenens therapist hinges more on the size of their practice than its location; therefore, PPS has focused on expanding the locum tenens provision of Medicare to include physical therapists practicing in all communities. Enactment of the bipartisan Prevent Interruptions in Physical Therapy Act (S.2612/H.R.1611) would enable all private practice physical therapists—regardless of where their clinic is located—to use a locum tenens to provide their Medicare patients continued care when they need to be out of the clinic. Please ask both of your Senators and your Representative to cosponsor the bill, share the one-pager3 with them, and explain why you and your patients need this bill to become a law.
By adding physical therapists to the list of providers currently able to opt out of Medicare, the Medicare Patient Empowerment Act (S.826/H.R.3322) would increase patient choice of both providers and settings for Medicare and Medicare Advantage beneficiaries. Enactment of this legislation would achieve PPS’ goal of allowing physical therapists in private practice to privately contract with Medicare patients—regardless of whether that person was a participating or non-participating physician or practitioner. To offer protections to patients, the bill prohibits a provider from entering into a contract at a time when the Medicare beneficiary is facing an emergency medical condition or urgent health care situation. While portions of this policy could reduce Medicare spending, not all patients who would take advantage of this flexibility would be shouldering the costs themselves because the bill also provides patients the option to submit a claim to and be reimbursed by Medicare for the amount that would be paid if the professional were a participating practitioner. While there is notable provider interest in the policy due to reductions in Medicare reimbursement rates, unfortunately Members of Congress are not supportive. As of this writing, only three Republicans in Congress (two in the Senate and one in the House) and not a single Democrat are willing to cosponsor the bill. If the ability to opt-out of Medicare would make a big impact on the community you seek to serve, please reach out to your Members of Congress, share the one-pager4 with them and ask for them to cosponsor the bill.
Physical Therapist Assistants
In May, we lobbied Members of Congress to ask CMS to delay the implementation of the 15% payment differential for care provided in whole or in-part by a PTA/OTA for those providers working in rural and underserved areas. CMS has yet to respond. In the meantime, PPS continues to fight for fair and equitable Medicare reimbursement for physical therapists in private practice and the elimination of administrative barriers by working with APTA and other rehabilitation providers to identify lawmakers to champion a bill that address our top three PTA related concerns: 1) delay the implementation of the payment differential, 2) provide additional relief for those PTAs practicing in rural and underserved areas, and 3) permanently improve the PTA supervision standard.
This Congressional letter also pursued favorable Medicare standards for supervision of assistive personnel by recommending that “CMS provide support and flexibility to small therapy businesses by modifying the supervision requirements for PTAs and OTAs from direct to general in private practice via the 2022 MPFS rulemaking.”5 In the 2022 MPFS proposed rule CMS partially responded by proposing to make permanent the current PHE-triggered policy “to allow the supervising professional to be immediately available through virtual presence using real-time audio/video technology, instead of requiring their physical presence” (emphasis added). What CMS proposed is close but not equal to general supervision because current general supervision policy only requires the supervising provider to be available through “telecommunications” and doesn’t include a visual component. PPS has pointed this out and requested that the supervision standard for PTAs be permanently changed to the current general supervision standard.
TECHNOLOGY AND TELEHEALTH
For the duration of the Public Health Emergency (PHE)—which has been extended until October 18, 2021, but the Biden Administration has signaled its intent to continue to renew the PHE for the rest of 2021—Medicare will continue to pay physical therapists and PTAs for providing care via telehealth. Recognizing that using telehealth to provide care works well for some but is simply less relevant for others, we are pursuing legislation to include physical therapists and physical therapist assistants among those non-physician providers who are authorized to be paid for providing care to Medicare beneficiaries using telehealth.
CMS does not have regulatory authority to reimburse physical therapists for telehealth outside of the PHE waivers provided by the CARES Act. Therefore, in order for physical therapists and private practice clinics to be permanently eligible for reimbursement for services provided via telehealth, it is necessary to change the law. Lawmakers generally recognize that this past year and a half has validated using telehealth to provide care, including physical therapy. A significant number are stating their support for moving legislation that will make some of the COVID-era waivers permanent. Multiple bills have been introduced; some are narrowly tailored while others are very broad and offer a buffet of policy options that lawmakers can choose from when preparing an overarching telehealth package to consider. All of these bills are competing for attention. Some lawmakers are picking and choosing, others are signing onto multiple bills to signal their enthusiasm, while a minority of lawmakers are remaining disengaged.
The Expanded Telehealth Access Act (H.R.2168) is the legislation of choice for physical therapists in private practice. This bill seeks to permanently add physical therapists, physical therapist assistants, and other rehabilitation therapists to the list of providers that Medicare pays for telehealth. Enactment of this bill would ensure payment for providing care to Medicare beneficiaries via telehealth as well as allow for parity in payment. PPS, APTA, and the other rehabilitation therapy organizations were directly involved in drafting the legislative language. Please share this one-pager6 with your elected officials and ask them to cosponsor this physical therapist focused language. The companion bill in the Senate has yet to be introduced as of this writing, but it is expected soon.
While the Telehealth Modernization Act (S.368/H.R.1332) also seeks to make certain PHE-related telehealth flexibilities under the Medicare program permanent, it has its shortcomings. Instead of requiring specific types of providers to be approved for payment, this bill simply grants the Secretary of Health and Human Services (HHS) the power to make that determination. While this is a step towards parity in coverage for telehealth, it does not achieve our goal of guaranteed payment to physical therapists and physical therapist assistants for telehealth-based care provided to Medicare beneficiaries. Simply put, should this bill become law it would grant CMS the regulatory authority to add physical therapists and physical therapist assistants to the list of providers paid for providing telehealth care, but in order to achieve the inclusion of rehabilitation therapists, we would then need to focus our advocacy efforts on compelling HHS to act. The challenges of regulatory advocacy and the fact that policies made by rulemaking are subject to change with each new Administration make this option less than ideal.
The CONNECT for Health Act (S.1512/H.R.2903) is a broad but shallow bill which proposes a wide-range of telehealth applications. The part most relevant to physical therapy provides the Secretary of HHS authority to add rehabilitation therapists to the list of Medicare providers that can be paid for telehealth; however, once a provider-type is added to the list, that status would only last 3 years and would be subject to renewal. This potentially temporary policy, which also leaves the decision of whether to include physical therapists and physical therapist assistants up to the Secretary of HHS, does not achieve the Section’s policy goals.
Following the mandate of the Section’s advocacy priorities, as we seek permanent coverage for telehealth, we are prioritizing legislative action and promoting the use of a hybrid model such that physical therapist services may be provided in person and via telehealth. Our ultimate goal is the inclusion of the language of the Expanded Telehealth Access Act in whatever legislative package is moving through Congress and that payment for physical therapist services provided via telehealth is contingent upon an in-person physical therapy visit being available to all patients. As such, please join us in asking Members of Congress to cosponsor the PPS-endorsed bipartisan Expanded Telehealth Access Act (H.R.2168), and not any of the other bills detailed above.
SMALL BUSINESS ISSUES
On our quest for policies which enable physical therapists to enter into private practice and sustain their small businesses while supporting the economic vitality of their community, each time we engage with a lawmaker or their staff we remind them that PPS members are small business owners as well as healthcare providers—by doing so we multiply the relevance of the conversation for the Member of Congress. Similarly, by responding to issues that we bring to their attention, legislators are able to support healthcare providers as well as small business owners who are making a positive impact in their district. We are currently seeking better tax treatment for those who received Provider Relief Funds (PRF) as well as reducing administrative burden and utilization management obstacles when treating Medicare Advantage beneficiaries.
In accordance with the Section’s interest in the [elimination of] administrative barriers to enable Medicare beneficiaries to optimize access to physical therapists for treatment, we have been lobbying in support of the Improving Seniors’ Timely Access to Care Act (H.R.3173) which has the potential to reduce administrative burden by requiring a streamlined and standardized process by which Medicare Advantage (MA) plans use prior authorization as well as increasing oversight and transparency around prior authorization. Close to half of the members of the House of Representatives have cosponsored this bipartisan bill and it is one of the top three bills that PPS members are instructed to ask their Representative to cosponsor. A one-pager7 is available to assist you in your advocacy efforts. While the companion bill has yet to be introduced, the previous lead of the Senate bill has indicated that he plans to reintroduce the legislation.
Favorable Tax Treatment
In response to the charge to monitor, respond to, and participate in tax policy updates to support physical therapists in private practice, PPS has been working to gain momentum for the bipartisan Eliminating Provider Relief Fund Tax Penalties Act (H.R.2079) which seeks to override the 2020 IRS guidance which stated PRF grants are to be treated as gross income and therefore taxable. Nullifying those regulations will make the PRF grants tax-free and therefore more effective tools to reimburse providers for healthcare related expenses or lost revenues attributable to COVID-19. Additionally, this legislation would ensure that expenses attributable to PRF assistance would also be able to be tax deductible. While there is a slow and steady increase in the number of cosponsors of the bill, the path forward will be a challenge. This is because some relevant committee staff are concerned that a broad tax exemption would apply the whole range of providers who received PRF funds, even if that entity didn’t lose money. Committee staff have also stated that when the legislation was drafted in the spring of 2020, the funds were intended to be a grant and therefore taxed. Without committee support, it is unlikely this bill (without significant modifications in mark-up) would move in the House.
Through the steady drum beat of advocacy efforts—both in Washington, D.C. by your lobbyist and the PPS Key Contact team’s impactful conversations and clinic visits—we have continually reminded policy makers that physical therapists should be seen as a primary care provider for neuromusculoskeletal dysfunction and have been promoting the physical therapy profession as a point of entry into the medical model for movement disorders. Our efforts also include the core goal of permanently mitigating Medicare payment policies that undermine the importance and value of physical therapist and physical therapist assistant care as well as its impact on patients and their communities.
PPS members as constituents, business owners, and providers are encouraged to join these advocacy efforts. The more voices the better. The most effective advocacy is that which reaches as many lawmakers as possible then maintains the rhythm of conversation through follow-up and continued engagement. The more people a given lawmaker hears from the more likely it is that they will act upon the request. Check the Advocacy Blog for the most recent call to action. You can use the talking points provided when you reach out to your lawmakers and ask them to cosponsor PPS’ top priority legislation. Be sure to remind them that if these priorities are achieved, they will enable you to serve your patients and provide good jobs for their constituents—and possibly grow your businesses to improve the community even more.
1Letter to Speaker Pelosi and Leaders Schumer, McConnell, and McCarthy. https://ppsapta.org/sl_files/0DBED1D2-FE43-1CCB-87826A5F54488841.pdf. July 23, 2021.
221st Century Cures Act enacted December 13, 2016; Public Law No: 114-255
3Ensure Uninterrupted Access to Care. PPS website. http://ppsapta.org/sl_files/4D05A3E9-0E09-8A7A-06A0822BC8AB24AA.pdf. Accessed August 13, 2021.
4One-to-one Medicare Opt Out. PPS website. http://ppsapta.org/sl_files/9D93C7AC-E063-8148-BBDB81B81227BBD8.pdf. Accessed August 13, 2021.
5Letter to the Honorable Xavier Becerra. https://ppsapta.org/sl_files/FDB72AD9-9A81-1A68-832660B9418B7442.pdf. May 14, 2021.
6RECOMMENDATION: The Private Practice Section (PPS) of the American Physical Therapy Association (APTA) urges Congress to pass the bipartisan Expanded Telehealth Access Act (H.R.2168) to ensure physical therapists can continue to use telehealth to provide physical therapy services to Medicare beneficiaries. PPS website. http://ppsapta.org/sl_files/8D1DDA04-9227-B3EC-41DE60933423ACC2.pdf. Accessed August 13, 2021.
7RECOMMENDATION: PPS urges Congress to pass the bipartisan Improving Seniors’ Timely Access to Care Act (H.R.3173) to improve access to physical therapy care for seniors by streamlining and standardizing the use of prior authorization as well as increasing oversight and transparency of how Medicare Advantage plans use prior authorization. PPS website. https://ppsapta.org/sl_files/9DB4B8C4-D29C-D06F-F161E8230B836D08.pdf. Accessed August 13, 2021.
Alpha Lillstrom Cheng, JD, MA, is a registered federal lobbyist and the President of the firm Lillstrom Cheng Strategies which has been retained by PPS. An attorney by training, she provides guidance to member organizations, companies, non-profit organizations, and political campaigns.