Advocacy During a Public Health Crisis
By Alpha Lillstrom Cheng, JD, MA
Only the most pessimistic crystal ball could have predicted what has happened so far this year.
The public health emergency of the COVID-19 pandemic has not just swept across the globe, but it has upended the plans of every small business owner. Beginning in March most PPS members saw their patient volume drop and were immediately forced into crisis mode when considering how and if to keep their clinics open, provide for patient care, keep their employees on payroll, and sustain their businesses. PPS members weren’t alone — no facet of the American life or economy was untouched.
INITIAL LEGISLATIVE RESPONSE TO COVID-19 CRISIS
Members of Congress responded to the national crisis by passing a number of bills. This first coronavirus specific bill, the Coronavirus Preparedness and Response Supplemental Appropriations Act became law on March 6. The goal was simply to increase funding for the federal agencies that were expected to prepare for and manage a significant health event and to moderately increase access to medical care (not physical therapy) via telehealth. It quickly became clear that additional federal government resources and support were necessary. On March 18, the Families First Coronavirus Response Act became law. This legislation required private insurance and federal health programs to cover and impose no cost-sharing for the testing and diagnosis of COVID-19. It also put in place temporary requirements for paid sick and family leave during the public health emergency and instituted tax relief for employers so they would have funds available to cover the costs of this leave.
Almost immediately, the capacity of those legislative reinforcements was overwhelmed by the needs of the American people and the realities of the impact of stay-at-home orders and reduced economic activity. A little over a week later, the Coronavirus Aid, Relief, and Economic Security Act (CARES) Act, which aimed to provide sufficient support to the economy during this public health crisis, became law on March 27. The CARES Act provided more funding to existing Small Business Administration (SBA) loan programs like the Economic Injury Disaster Loans (EIDL) and created the Paycheck Protection Program (PPP) to provide small businesses that maintained their payroll during the crisis cash-flow assistance by way of federally guaranteed loans of which a portion covering 8 weeks of qualified expenses can be forgiven. CARES also expanded the eligibility, amount, and access to unemployment. For each of these laws passed in March 2020, lawmakers hoped that their legislative efforts would be enough. However, in response to the overwhelming need of small business owners and the quickly depleted EIDL and PPP funds, on April 24 the Paycheck Protection Program and Health Care Enhancement Act was enacted. This law provided additional funding, directives for how the money was to be allocated, and reporting requirements, but no new policy was included in this law. At the time of this writing (May 2, 2020), policy makers are in deep discussion about what should be included in the next legislative response to COVID-19.
WHY TO KEEP ADVOCATING
While asking Members of Congress for more help during a public health crisis may seem tone deaf, it’s wholly appropriate to do so. This is especially the case when there is an immediate need to update policy to reflect the needs of the American people, in real time.
Normally, policy is developed as a response to a long-running problem that, when addressed, would improve the lives of those who are impacted by it directly. The process of identifying what would be the most appropriate and narrowly-tailored policy change to address the issue is generally formulated over the course of time and based upon conversations with hundreds of impacted individuals and stakeholders. Policy specialists combine that input with their own expertise and begin to craft a bill. Legislation is usually drafted, evaluated, and revised multiple times. This spring, lawmakers didn’t have that luxury. Instead, they acted quickly and with the intent of providing necessary support. Each legislative text was arguably insufficient and flawed. While these were bipartisan bills, they were crafted under immense pressure to find a common ground that could be achieved over a short period of time with very few people involved (as compared with the development of a typical piece of legislation).
While lawmakers did respond to the crisis, as weeks and months pass, they are more interested in a measured approach to future legislation that addresses the COVID-19 public health crisis as well as tangentially related issues. They are not only more able, but eager, to hear from their constituents. From now until the General Election on November 3, it is important for your elected officials to hear from you about what has been overlooked by previous legislative and regulatory actions taken in response to COVID-19 or to highlight other legislative priorities that have been forced to take a back seat.
Since the crisis began, PPS has been shining a spotlight on issues that most directly impact the ability of private practice physical therapists to continue to safely provide care to patients as well as policies that will provide much needed support for the short and longer term business interests of PPS members.
Allow for PTs and PTAs in Private Practice to Provide and Bill For Telehealth Care
On March 30, CMS released regulations that allowed physical therapists to use telehealth codes as of March 1; however, physical therapists were still not able to be paid for telehealth services provided to Medicare beneficiaries. This is because, as CMS noted on page 35 of the rule: “the statutory definition of distant site practitioners…does not include physical therapists, occupational therapists, or speech-language pathologists, meaning that it does not provide for payment for these services as Medicare telehealth services when furnished by physical therapists, occupational therapists, or speech-language pathologists.” PPS, APTA, and other rehabilitation therapy groups sprung into action by writing to CMS directly reminding them that the recently enacted CARES Act provided the Agency the authority to waive this last barrier. PPS also reached out to the White House and asked PPS members (and their patients) to encourage their Members of Congress to compel CMS to follow through with the legislative intent of CARES by immediately acting to broaden coverage of Medicare telehealth services by issuing a blanket waiver to allow physical therapists to be classified as distant site practitioners and therefore able to bill for these telehealth codes.
These efforts caught the attention of a number of Members of Congress. Some wrote or called CMS directly, others introduced legislation to compel CMS to include physical therapists, physical therapist assistants (PTAs), occupational therapists, occupational therapist assistants (OTAs), and speech-language pathologists in the list of providers who can provide and bill for care via telehealth and to have that flexibility be applied retroactively to March 1.
After a month of constant pressure by providers, patients, and Members of Congress, CMS relented on April 30. Retroactive to March 1, CMS now allows all providers who are eligible to bill Medicare for their professional services to furnish distant site telehealth services. This allows health care professionals who were previously ineligible, including physical therapists, to receive payment for providing telehealth services to Medicare beneficiaries for the duration of the public health emergency declaration. This was a hard-fought win for both providers and the patients they care for.
Remove Additional Regulatory Barriers and Administrative Burdens
A public health emergency demands that health care providers and payers reassess protocols to ensure that limited health care resources are used efficiently. Some regulatory burdens are well known and, while not unique to this crisis, are magnified at this time. Seeking to relieve these outmoded administrative and supervision burdens, on April 29, PPS and APTA sent a letter to HHS Secretary Azar and CMS Administrator Verma to strongly encourage the Agency to immediately set aside additional regulatory burdens in the interests of efficiency and to ensure patient safety and protect health care providers. The letter requested that CMS eliminate the plan of care signature requirement during the COVID-19 pandemic and pointed out that even during normal circumstances compliance with the physician signature requirement imposes a significant logistical and administrative burden upon both therapy providers and physicians. We reminded the Agency that waiting for a signed plan of care can force delays of clinically significant interventions as well as divert valuable time and resources away from delivering patient care.
PPS and APTA also noted that during the COVID-19 crisis, a private practice that employs PTAs is severely limited if the supervising physical therapist is sick or in quarantine. Furthermore, the direct supervision requirement prevents staff from practicing a form of physical distancing where only some staff are on-site each day. The Agency was asked to recognize the value and benefit of modifying the PTA supervision requirement in private practice settings from direct to general supervision because modification would better promote unrestricted, non-delayed access to therapy interventions.
Delay 8% Cut
PPS has been working hard to urge Members of Congress to delay the upcoming cut to physical therapy reimbursement. The latest iteration of this effort is emphasizing the impact of the public health crisis on patient volume, and thus, the economic challenges that practices are facing while asking for relief to be included in legislation to address COVID-19. In March, PPS, APTA, and a coalition of 28 other specialty groups sent a letter to Majority Leader McConnell and Speaker Pelosi urging them to waive the budget neutrality requirements that stipulate that in order for CMS to increase the payment for evaluation and management (E/M) codes, reductions must be made elsewhere to balance out the overall cost. As you know, CMS intended to pay for this increase by cutting the reimbursement of physical therapists and other specialists who do not generally bill evaluation and management (E/M) codes.
In mid-April, we were thrilled when the American Medical Association (AMA), state medical societies, and a number of specialist physician groups sent a joint letter to Congressional leadership requesting this waiver. PPS and 45 other specialist organizations immediately sent a follow-up letter referencing the AMA-led letter’s statement that reiterated our original ask of waiving the budget neutrality requirements for up to 5 years. To further reinforce this advocacy goal, PPS issued an Advocacy Alert asking for members to contact their legislators with the same ask. There is now significant, vocal, and broad stakeholder support for this legislative intervention.
THE EXTRA PRESSURE OF AN ELECTION YEAR
COVID-19 likely hobbled your practice, community, and patients. It is also hampering the campaigns of those seeking to represent you in Washington. Normally the summer and fall of an election year is full of large public events such as campaign rallies, town hall meetings, and fundraisers where candidates (new and incumbent) are eager to meet as many people as possible. This will not be the case this year. Instead of coming to your communities or your clinics, they will want you to reach out to them via email, letter, or possibly video conference.
While some of you have worked hard to build relationships with your Members of Congress, many of you are just getting started. While it may seem intimidating, know that because it is their job to represent you, they expect to hear from you and to be asked for help. Lawmakers receive many requests, so it is important that you “introduce yourself.” First, your Representative needs to be sure that you live in their district — or state in the case of Senators — and are a constituent. Second, they are much more likely to respond to your feedback and requests if they recognize that you are a leader in your community; this is because they then understand that you are a small business owner who not only employs, but interacts with a significant number of people who are also their constituents. Make sure your initial outreach not only includes your ask but informs them that you are a small business owner, the location of your clinic(s) in the district, how many therapists and support staff you employ, and how long you have been part of that community.
While the federal government can shape many aspects of health care policy, Members of Congress are able to mandate changes to the Medicare program that can directly improve the lives of your patients. Therefore, when you communicate with federal lawmakers it is crucial that you tell them that you are a physical therapist in private practice and disclose the percentage of patients you see who are Medicare beneficiaries. This will allow them to immediately understand that you are a stakeholder and can serve as a resource and sounding-board for how policy changes would impact your small business and patients’ access to care.
While each lawmaker’s website has portal through which to send correspondence, that is not the most effective way to communicate with the policy staff. If you don’t already have a relationship with the health care staffer, call the official office of your Member of Congress and ask for the name and email address of the person who is responsible for health care policy. This is the person to write to directly with all advocacy asks. An incumbent’s official office (not campaign) staff will have direct engagement with the lawmaker and be most aware of the nuances of the policy considerations you are going to bring to their attention. In the case of candidates challenging an incumbent legislator, ask the campaign office for the contact information of his/her policy director. Each time you reach out, include a one-sentence version of the ask in the subject line of your email. When you are reiterating your suggestions and requests via the social media platforms of the candidates and incumbent lawmakers please include #PPSAdvocacy.
ADVOCACY NEVER RESTS — EVEN IN TIMES OF CRISIS
In order to keep abreast of advocacy opportunities and topics to bring to the attention of candidates, check out the PPS Legislative Update Blog at ppsapta.org/advocacy/blog where each advocacy entry includes a brief overview of the issue as well as talking points and email templates to use when making that specific “ask” to your Members of Congress or informing a candidate about an issue. If an Action Alert arrives in your inbox, please take the few minutes to respond and encourage your colleagues to do the same. Members of Congress take notice when they hear from a number of stakeholders and business leaders about the same issue and all candidates want to make friends with community influencers.
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.