Regulatory Changes for 2017

Book_CMS

Medicare Physician Fee Schedule Update for Calendar Year 2017

By Alpha Lillstrom Cheng, JD, MA

The Centers for Medicare & Medicaid Services (CMS) is responsible for developing, proposing, and finalizing regulations in order to implement health legislation that has been passed by Congress and signed into law. The regulatory process consists of publishing proposed rules and requests for information in order to allow for public review and to receive stakeholder input in the form of “comments.” On behalf of the over 4,200 members, the Private Practice Section (PPS) regularly analyzes and responds to regulatory initiatives that pertain to private practice physical therapy.

CMS has expressly undertaken a significant change in reimbursement; moving away from volume, toward value. This means transitioning away from the standard fee-for-service model and toward payment on the basis of quality. As a result, regulatory proposals relevant to the practice of and payment for all services including physical therapy are increasing in number and complexity. This year three such rules will go into effect. First are changes to the Medicare Physician Fee Schedule that will result in payment adjustments for care provided by physical therapists and others paid under the fee schedule. This article will point out those changes and the impact they have on therapists in private practice. Future articles will provide similar analysis of two additional final rules: the rule to expand the Comprehensive Care for Joint Replacement (CCJR) bundling program and to create a similar model for surgical hip and femur fracture treatment (SHFFT) as well as the rule to implement the Quality Payment Program (QPP) that rewards value and outcomes through one of two paths: the Merit-based Incentive Payment System (MIPS) or participation in Advanced Alternative Payment Models (APMs).

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Medicare Physician Fee Schedule
The CMS annual update of the Medicare Physician Fee Schedule (MPFS) for Calendar Year (CY) 2017 was effective January 1, 2017.1

Payment Rate
For the time being, fee-for-service remains the basis of reimbursement models, and the MPFS is a key reference for payment well beyond the Medicare program. Payments under the MPFS are based on the resources typically used to furnish the service in question. Relative value units (RVUs) are applied to each service as part of the mechanism used to calculate provider work and practice expense. These RVUs become payment rates through the application of a conversion factor that is updated each year. The 2017 Medicare Conversion Factor is 35.8887. This is slightly higher than 2016.

Evaluation Codes
Before CMS proposed modifications for the 2017 MPFS, the American Medical Association (AMA)’s Current Procedural Terminology (CPT) Code Editorial Review Panel deleted CPT codes 97001 and 97002 and created four new CPT codes (97161–97164) to describe physical therapy evaluation procedures. CMS adopted these recommendations. In place of what had been the single CPT code 97001, CMS will use three new codes to categorize physical therapy evaluations into three levels of complexity—low, moderate, and high.2 The new code 97161 will represent the “low” complexity evaluation, which is expected to take 20 minutes of a therapist’s time with a patient and/or their family.3 The evaluation for cases of “moderate” complexity (91762) is estimated to take 30 minutes, while the highly complex cases (91763) are anticipated to require 45 minutes of a therapist’s time in order to complete an evaluation.4 Reevaluation of the established physical therapy plan of care will use the fourth new code (97164) instead of the previous code (97002).5 Table 23 (see sidebar on p.20) in the final rule includes the long descriptors and the required components of each of the four new CPT codes for the physical therapy services.6

Despite the comments of PPS and other stakeholders, which strongly encouraged CMS to follow the recommendation made by the AMA’s Relative Value Scale Update Committee (RUC) and the Health Care Professionals Advisory Committee (HCPAC) that the RVUs in CY 2017 for these new stratified codes be 0.75 for low, 1.18 for moderate, and 1.5 for highly complex evaluations, the final rule stated that all three codes will be priced as a group. Instead of being valued individually to reflect the level of complexity, each of the three levels of evaluation will have an RVU of 1.20.7 In contrast, the RVU of the reevaluation code for physical therapy was increased in the final rule from the proposed 0.6 to 0.75.8

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Potentially Misvalued Codes
CMS has the authority to periodically reassess the value of “codes that account for the majority of spending [on therapy] under the physician fee schedule.” 9 In the 2017 MPFS final rule, CMS identified 10 potentially misvalued codes commonly used in physical therapy: electrical stimulation (97032), ultrasound therapy (90735), therapeutic exercises (97110), neuromuscular reeducation (97112), aquatic therapy/exercises (97113), gait training therapy (97116), manual therapy techniques (97140), therapeutic activities (97530), self-care management training (97535), and electrical stimulation other than wound (G0283).10 CMS acknowledged that physical therapy organizations are working with the AMA Relativity Assessment Workgroup to survey and submit changes to certain CPT codes on the misvalued code list and expect the valuation analysis and recommendations from the AMA RUC in February 2017.11 As of this writing, that analysis and recommendations have not been filed. CMS officials have indicated that they plan to discuss valuation of the 10 potentially misvalued codes in the 2018 MPFS update.

2017 Therapy Cap Update
The Medicare outpatient therapy cap amounts are updated each year. The CY 2017 therapy cap was set at $1,980.12 Since January 1, 2006, CMS has been empowered to provide an exception to the therapy cap. That exceptions process has been extended multiple times through subsequent legislation including the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA). CMS’s current authority to provide an exception to the cap on therapy expires on December 31, 2017.

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Since 2012, CMS has also been required to apply a manual medical review process to therapy claims when a beneficiary’s outpatient physical therapy and speech-language pathology services incur combined expenses that exceed a threshold amount of $3,700.13 As a result of MACRA, additional flexibility was added so that not all claims exceeding the monetary threshold are subject to a manual medical review. Instead, CMS is permitted to do a targeted medical review for those claims filed by therapy providers with a high claims denial rate or who have atypical billing practices compared to their peers.14

In order to repeal the therapy cap, extend the exceptions mechanism, or maintain the manual medical review process, corrective legislation must be passed before each of these provisions expires on December 31, 2017. The popular bipartisan Medicare Access to Rehabilitation Services Act (H.R.807/S.253) was reintroduced on February 1, 2017. The House bill is sponsored by Representatives Erik Paulsen (R-MN), Ron Kind (D-WI), Marsha Blackburn (R-TN), and Doris Matsui (D-CA). Senator Ben Cardin (D-MD) is once again leading the bill in the Senate and is joined by Senators Susan Collins (R-ME), Bob Casey (D-PA), and Dean Heller (R-NV) serving as original cosponsors of the Senate bill. PPS members are urged to contact their representative and their senators asking them to put their full support behind this legislation. Moreover, your lobbyists encourage all private practice physical therapists to respond to legislative alerts as we once again lobby vigorously to repeal this arbitrary cap that is so harmful to our Medicare patients who are most in need of our services.

Conclusion
The payment for physical therapy services was marginally improved by the CY 2017 MPFS. The Medicare conversion factor increased slightly, and the therapy cap was raised by 20 dollars over last year. This year physical therapists are to use a new CPT coding system that acknowledges varying levels of complexity in patient evaluations; however, the payment rate maintains a single RVU for physical therapy evaluations and is not stratified to reflect the complexity of care. Only reevaluations received a small increase in reimbursement. CMS also used the MPFS to identify 10 commonly used physical therapy codes as “potentially misvalued” and suggested that the values for those codes will be changed through rulemaking that will take effect in 2018.

At the time of this writing, it remains unclear how the Department of Health and Human Services (HHS) and CMS will perform under the new Trump administration. Each administration uses the power of rulemaking to implement laws according to their own agenda and interpretation—within the confines of the law as drafted and the discretion given to the Secretary. Your PPS lobbyists will remain vigilant and engaged on how the regulations proposed will impact private practice physical therapists.

References

1. CMS-1654-F: Medicare Program; Revisions to Payment Policies Under the Physician Fee Schedule and Other Revisions to Part B for CY2017; Medicare Advantage Bid Pricing Data Release; Medicare Advantage and Part D Medical Loss Ratio Data Release; Medicare Advantage Provider Network Requirements; Expansion of Medicare Diabetes Prevention Program Model; Medicare Shared Savings Program Requirements, https://www.gpo.gov/fdsys/pkg/FR-2016-11-15/pdf/2016-26668.pdf, pp. 80170.

2. There are three new codes, also stratified by complexity, to replace a single code, CPT code 97003, for occupational therapy (OT) evaluation.

3. Ibid., pp. 80337.

4. Ibid., pp. 80337.

5. Ibid., pp. 80337.

6. Ibid., pp. 80337.

7. Ibid., pp. 80334.

8. Ibid., pp. 80336.

9. Ibid., pp. 80338.

10. Ibid., pp. 80339.

11. Ibid., pp 80339.

12. Ibid., pp 80391.

13. Ibid., pp 80392.

14. Ibid., pp 80392.

Lillstron

Alpha Lillstrom Cheng, JD, MA, is a registered federal lobbyist working with Connolly Strategies & Initiatives, 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 Senators Bob Casey, Al Franken, Russ Feingold, and Mark Begich. She was Senator Franken’s Policy Director during his first campaign and was hand-picked to be the Recount Director for his eventual 312-vote win in 2009.

Legislative and Regulatory Advocacy Priorities for the 115th Congress

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By Alpha Lillstrom Cheng, JD, MA, and Jerry Connolly, PT, CAE

Every two years, each seat in the House of Representatives and one-third of the one hundred U.S. Senate seats are up for election. The 115th Congress began on January 3, 2017, when all of the members of the House of Representatives and 34 U.S. senators were sworn in for their terms in office. This new Congress is the most diverse in history, with more minority lawmakers than ever before and a record 21 women in the U.S. Senate. There are 52 new members of the House of Representatives, and the House’s Republican majority was reduced by a dozen to 47. Republicans also hold the majority in the Senate with 52 members to the 46 Democrats and 2 independents who caucus with the Democrats. There are seven new senators, three of whom (Chris Van Hollen [D-MD], Tammy Duckworth [D-IL], and Todd Young [R-IN]) moved from serving their district in the House to representing their whole state in the Senate. While the GOP majority is smaller than in previous Congresses, the party still controls the floor and committee agendas in both chambers.

As you know, legislation does not carry over from one Congress to the next; thus, all bills in which we have an interest must be reintroduced. In many cases, the lead sponsors will remain the same, but in some situations, modifications in sponsorship will be in order. To regain and build support for our initiatives, we must not only advocate for members to cosponsor legislation that they had supported in the past but also reach out to those new members who are less familiar with our issues. You will see new bill numbers and hopefully a growing list of cosponsors on these bills this Congress as we make our way through the two-year term.

Donald J. Trump was sworn in as president on January 20. This will be the first time since 2001 that Republicans held the majority of both houses of Congress as well as the White House. However, this time it is different because Trump is proving to be a president like none that we have previously experienced. It is unclear in what way President Trump will provide support or input for the health reform debate, as well as how he will respond if or when proposals by Congress do not fall in line with his campaign promises.

Congressional leadership has made it clear that they plan to use the budget reconciliation process (allowing for a simple majority vote for passage in the Senate) to pursue repealing provisions of the Affordable Care Act (ACA). However, it will be some time before the details of any replacement package are known. Generally, the first few months of a new Congress are spent making legislative gestures to fulfill campaign promises and discussing the timelines of legislative priorities. Rarely are sweeping legislative reforms enacted right away. It is entirely possible that a broad ACA repeal bill will be enacted this year, but that the specific replacement will be identified and introduced in the future. This is because it is widely believed that the Republicans in Congress have yet to agree on a specific replacement package. It is also anticipated that a repeal signed into law this year could have an effective date that is delayed until after the 2018 mid-term elections in order to minimize the political risk to those who voted to repeal the law.

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Legislative and Regulatory Advocacy Priorities for the 115th Congress
In early December, members of the Private Practice Section (PPS) Board of Directors and the Government Affairs Committee (GAC) met to develop the advocacy priorities for the 115th Congress. In order to decide which issues your lobbyists should focus on, the Board and GAC took into consideration the needs and interests of PPS members and the changing landscape of health care policy while also evaluating the political makeup and priorities of the members of Congress as well as the new president and his administration. The following sections present the legislative and regulatory advocacy priorities determined by the Board and the GAC to be most pressing for the 115th Congress.

Legislative
For calendar year 2017, the cap for outpatient physical therapy and speech-language pathology (SLP) services is $1,980.1 An exceptions process for the therapy cap has been in effect since January 1, 2006, and has been extended multiple times through subsequent legislation. Since 2012, the Centers for Medicare & Medicaid Services (CMS) has applied a manual medical review process to therapy claims when a beneficiary’s annual outpatient physical therapy and SLP services incur combined expenses that exceed $3,700.2 CMS’s manual medical review process as well as its current authority to provide an exception to the cap on therapy expire on December 31, 2017. Corrective legislation must be passed before that date in order to extend the exceptions process or, better yet, to repeal the therapy cap itself. Therefore, the Board has decided that one of our priorities is the pursuit of a favorable resolution including the repeal or replacement of the arbitrary per beneficiary therapy caps on outpatient rehabilitation covered by Medicare while encouraging and achieving a streamlined, responsive, and transparent process for manual medical review of Medicare records by Medicare administrative contractors.

One of our long-time champions, Senator Ben Cardin (D-MD), will once again be the lead on this legislative effort in the Senate along with Senators Dean Heller (R-NV), Susan Collins (R-ME), and Bob Casey (D-PA). On the House side, the bill is expected to be reintroduced by two new leads: Representative Erik Paulsen (R-MN) and Representative Ron Kind (D-WI), who both serve on the Ways and Means Committee. They will be joined in this effort by Energy and Commerce Committee members Representatives Marsha Backburn (R-TN) and Doris Matsui (D-CA). The change is due to the fact that neither of the two leads on the bill last Congress, Representative Charles Boustany (R-LA) and Representative Xavier Becerra (D-CA), are serving in the 115th Congress.

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PPS remains interested in legislation that allows physical therapists in private practice to opt out of Medicare or privately contract with Medicare patients. For a number of years, legislation has been introduced seeking to make this possible. We anticipate that Senator Lisa Murkowski (R-AK) will remain the lead in the Senate. Since our House champion, Dr. Tom Price (R-GA), has been tapped to be the secretary of Health and Human Services, it is unclear at this time who will be the new lead sponsor in the House. This policy has long been supported by members of the Republican caucus; since both houses of Congress are controlled by Republicans who aim to reform the Medicare program, this Congress may be the time when we can achieve more than collecting cosponsors.

In December of last year, our concerted efforts and grassroots engagement were rewarded with the achievement of a change in Medicare law that would allow private physical therapists practicing in rural, medically underserved, and health professional shortage areas to utilize the locum tenens provision to arrange for a qualified substitute physical therapist to provide care for their Medicare-enrolled patients. While this significant victory begins to address the needs of our members and their patients, we have long argued that the need for a locum tenens hinges more on the size of the practice than its location. Therefore, the Board has adopted a priority that directs us to pursue the expansion of the locum tenens provision of Medicare to include physical therapists practicing in all communities.

During the 114th Congress there was a sharp uptick in the number of bills supporting the use of telehealth as a mechanism to increase access and provide more efficient care. The 21st Century Cures legislation that was signed into law at the end of 2016 requires both CMS and the Medicare Payment Advisory Commission (MedPAC) to submit reports to Congress recommending how best to utilize telehealth for Medicare beneficiary care. Meanwhile, CMS made it clear last year that it cannot use its regulatory authority to reimburse physical therapists for telehealth—making it necessary to change the law before physical therapists and private practice clinics are reimbursed for services provided via telehealth. Making the most of the growing congressional interest, we will work to achieve legislation that allows reimbursement through Medicare and federal health plans for physical therapy care through telehealth.

The Stark Law prohibits a Medicare or Medicaid patient’s physician from referring that patient to an entity to which he or she has a financial relationship. While some members of Congress and stakeholders have expressed concerns about waste and fraud, members of the Republican party generally oppose restrictions to physician self-referral practices. Despite this unfavorable political climate, PPS has reiterated its desire to address and mitigate the negative effects associated with physician self-referral. One option is through legislation seeking to remove physical therapists from the In-Office Ancillary Services Exception (IOASE) to the Stark Law. Another option is by making careful changes to the Stark Law itself that would protect the underlying principle yet provide the flexibility necessary for successful care integration, bundled payment structures, and growth of accountable care organizations, which are the increasingly prioritized aspects of health care delivery (although it remains to be seen if these delivery models will be embraced by the incoming Trump administration). In recent years, CMS has been supporting these reforms and innovation by granting waivers to the extent of their existing authority. In order to continue along this path, policymakers will need to evaluate how to balance the move toward bundled or episode payment while also protecting the integrity of the Medicare program against waste and fraud, as well as infringement on beneficiary choice that has been shown to be associated with self-referral. We will share our concerns about the cost and risk of self-referral—to both patients and providers—as policy proposals emerge.

As health care reform proposals emerge, the Board has prioritized efforts to: oppose increased privatization of the Medicare program that would result in an increased administrative burden for providers or that negatively impacts our patients; achieve consistent Medicare standards for supervision of support personnel across physical therapy practice settings; promote policy that embraces the use of physical therapists in private practice as timely evaluators and managers of quality of life for patients with chronic conditions; remove the barriers to patient access of physical therapists in private practice; and pursue repeal of the Independent Payment Advisory Board (IPAB), while opposing an increase to Medicare’s eligibility age.

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Because legislation to reform and/or replace Obamacare is anticipated, the Board adopted priorities that focus on the following provisions of the health care law: promote physical therapy as an essential health benefit (EHB) in all insurance plans; retain guaranteed access to insurance for those with preexisting conditions as well as protect the ban on rescission for those who do have coverage; advocate to maintain requirements that children, up to age 26, are able to remain on their parents’ health insurance; and support consumer choice and shopping at the point of care through improved price transparency by health care providers.

Policy reforms are also expected to extend to the mechanics of health insurance and the insurance industry; therefore the Board adopted appropriate priorities to promote administrative simplification; address and mitigate the negative effects of market control by insurance plans and related entities on physical therapists in private practice and their patients; support policy that requires provider networks to be of the size, scope, geography, and expertise necessary to increase patient choice; oppose policies that unreasonably limit patient access and choice of physical therapist; support opportunities for consumers to purchase health insurance across state lines; and pursue elimination of arbitrary limits and denials for services provided by physical therapists in private practice in accordance with evidence of value.

Furthermore, your Board reiterated interest in legislation focused on small business issues such as support for legislation that allows small businesses to form groups for the purpose of purchasing health insurance for themselves and their employees; federal student loan repayment programs in underserved areas; as well as a mandate to monitor, respond to, and participate in tax reform efforts to benefit physical therapists in private practice.

As in years past, PPS will continue to promote policy that increases opportunities for veterans to receive outpatient services provided by physical therapists in private practice as well as support the APTA’s efforts to mandate that physical therapists in private practice are included in the medical team providing concussion management.

Regulatory
As mentioned earlier, Representative Tom Price, M.D. (R-GA), has been nominated to serve as the secretary of the Department of Health and Human Services (HHS). Before becoming a member of Congress, Dr. Price practiced as an orthopedic surgeon. This past Congress he served on the Ways and Means Committee and its Health Subcommittee and was chairman of the House Budget Committee. As stated previously, he was the lead sponsor of Medicare opt-out legislation in the House. He was also a vigorous proponent of physician self-referral and strongly opposed Medicare’s mandatory bundled payment initiatives for hip and knee replacements. As a vocal critic of the ACA, he played a leading role in Republican opposition to the law for the past six years and helped draft several bills to replace it. He has advocated changing Medicare from a “defined benefit” to a “defined contribution” program that would provide premium support (vouchers) to beneficiaries to buy their own private insurance policies. He has also been in favor of converting Medicaid into block grants to states. While he is eminently qualified for the position of secretary of HHS, with a deep understanding of federal policy and budgetary process, the positions he has taken in the past portend a bumpy road for several of PPS’s policy priorities.

Since the regulatory bodies of the government—namely, the Centers for Medicare & Medicaid Services (CMS)—propose and implement administrative rules that impact physical therapy, your PPS Board included a number of regulatory priorities in the advocacy directive for the 115th Congress. These include: monitor and respond to Medicare payment reform proposals, continue to fight for fair and equitable Medicare reimbursement for physical therapists in private practice, and promote the adoption by Accountable Care Organizations (ACOs) of quality measures that include functional health status. When proposed regulations are relevant to these priorities, official PPS comments will be submitted on behalf of the membership that reflect the perspectives, interests, and concerns of private practice physical therapists.

For example, comments are developed and submitted each year in response to regulations pertaining to the Medicare Physician Fee Schedule (MPFS). In the MPFS for 2017, a new system of tiered evaluation codes was established that corresponds to the complexity of the patient’s condition and how much time an evaluation will take. However, in the final rule, CMS decided to value—and thus reimburse—all three evaluation levels as a group, instead of individually, to reflect the level of complexity.3 Noting this, and CMS’s declaration that they plan to discuss the valuation of 10 “potentially mis-valued” codes in the 2018 MPFS update,4 the Board decided that we should monitor the implementation of the new evaluation codes and pursue appropriate values for each code. As we move forward, we will continue to advocate for payments that reflect the varied complexity that each code represents.

Conclusion
Each new Congress provides lawmakers with a clean slate from which to build or revise their policy priorities. Health care reform is likely to be a primary focus of both the legislative and executive branches of government. While many concepts have been suggested and campaign promises were made, specifics will emerge as the year progresses. Your lobbyists will stay abreast of proposals to reform Medicare, Medicaid, and health insurance regulations, as well as tax policies—all of which could impact the PPS membership.

Throughout the 115th Congress, we will support efforts to remove barriers to access as well as proposals that could improve business opportunities for private practice physical therapists. We will use the legislative and regulatory advocacy priorities for the 115th Congress as our guide when working with Congress and the administration on behalf of the Section and its members. In what could be a challenging political environment, we will continue to build on our bipartisan, bicameral efforts to identify and act on opportunities to advance PPS’s legislative and regulatory agenda. Since the voice of PPS members as constituents, business owners, and providers is a valuable part of our advocacy efforts, we will call on you as necessary and encourage you to be involved.

References

1. CMS-1654-F: Medicare Program; Revisions to Payment Policies Under the Physician Fee Schedule and Other Revisions to Part B for CY2017; Medicare Advantage Bid Pricing Data Release; Medicare Advantage and Part D Medical Loss Ratio Data Release; Medicare Advantage Provider Network Requirements; Expansion of Medicare Diabetes Prevention Program Model; Medicare Shared Savings Program Requirements, www.gpo.gov/fdsys/pkg/FR-2016-11-15/pdf/2016-26668.pdf, p. 80391.

2. Ibid., p. 80392.

3. Ibid., p. 80334.

4. Ibid., p. 80339.

Lillstron

Alpha Lillstrom Cheng, JD, MA, is a registered federal lobbyist working with Connolly Strategies & Initiatives, 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 Senators Bob Casey, Al Franken, Russ Feingold, and Mark Begich. She was Senator Franken’s Policy Director during his first campaign and was hand-picked to be the Recount Director for his eventual 312-vote win in 2009.

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Jerome Connolly, PT, CAE, is a registered federal lobbyist whose firm, Connolly Strategies & Initiatives, has been retained by PPS. A physical therapist by training, he is a former private practitioner who throughout his career has served in leadership roles of PPS and APTA. Connolly also served as APTA’s Senior Vice President for Health Policy from 1995 to 2001.

Legislative and Advocacy Progress in the 114th Congress

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By Alpha Lillstrom Cheng, JD, MA, and Jerry Connolly, PT

CONGRESS
Over the past two years your lobbyists utilized the Private Practice Section (PPS) legislative and advocacy priorities for the 114th Congress to guide PPS advocacy efforts. With these goals in mind, we cultivated and capitalized on the relationships we have built with members of Congress. Through these efforts and PPS member engagement, we have been able to advance legislation that seeks to remove barriers to access as well as improve the business opportunities and climate for private practice physical therapists. While our advocacy goals have not been fully attained, we can take pride in the progress that has been made. We look forward to building on these accomplishments in pursuit of our goals. In boldface in the following are the Section’s advocacy priorities for the 114th Congress that received the most attention and activity, along with a detailed explanation of the legislative and regulatory activity in pursuit of the PPS mission.

LEGISLATIVE
Permanently replacing the sustainable growth rate (SGR) formula with a reimbursement method that pays physical therapists fairly and predictably, and repealing the arbitrary per beneficiary therapy caps on outpatient rehabilitation covered by Medicare.

PPS joined with other stakeholders to achieve a permanent repeal of sustainable growth rate (SGR) in April 2014 as a result of the passage of the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA). We got very close to including the full repeal of the Medicare Therapy Cap in that same law. One of our long-time champions, Senator Ben Cardin (D-MD), offered an amendment to the Senate’s version of the MACRA legislation seeking to repeal the Medicare therapy cap. Unfortunately, in the end, the Senate was two votes shy of accepting that amendment to the bill. While we were profoundly disappointed, we parlayed that support into amassing a record-breaking number of cosponsors for the Medicare Access to Rehabilitation Services Act (HR 775/S.539) in both the House and the Senate. The House bill attained 238 cosponsors, which is 55 percent of the members of the House of Representatives. This is 12 more than the record-breaking number of cosponsors obtained in the 113th Congress. When we secured 35 cosponsors in the Senate, we surpassed the previously historic level of support by two. We will continue working with the American Physical Therapy Association (APTA) and other stakeholders to develop strategies for how best to achieve the goal of repealing and replacing the Medicare therapy cap in the 115th Congress. Because the current exceptions process will expire in December 2017, we anticipate that there will be movement on this policy.

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Achieve legislation that allows physical therapists in private practice to opt out of Medicare or privately contract with Medicare patients.
Current law only allows for a select list of medical professionals (that does not include physical therapists) to opt out of Medicare. Additionally, under current law when an eligible provider does opt out, it must be a comprehensive, practicewide opt-out. Prior to 2014, only the House bill seeking to expand Medicare opt-out policy included physical therapists in the list of providers eligible to provide care to Medicare beneficiaries and be paid directly by the patients. In the 114th Congress, we worked to include physical therapists in the Senate version of the Medicare Patient Empowerment Act (HR 1650/S.1849). This bill would make it possible for all Medicare-eligible providers to privately contract with and accept direct payment from some Medicare beneficiaries but still bill Medicare for others, thereby empowering individual beneficiaries by expanding their choices. Despite our efforts, there has not been much activity on the issue these past two years. In large part this is because the 31 House and the 6 Senate cosponsors were all Republicans. Democrats are generally wary of moves toward privatization or creating opt-out options within Medicare; it is therefore not surprising that no one from that party joined the bill. In the 115th Congress we will be focusing more on the message that this legislation provides needed flexibility and gives options to both beneficiaries and providers at no cost to the Medicare program.

Achieve legislation that allows physical therapists in private practice to utilize locum tenens.
Medicare has long had a policy that recognizes the realities of a private practitioner and that life can get in the way of the best-laid plans. Under current law, physicians and a discrete list of Medicare providers are able to hire a fully qualified and licensed substitute or locum tenens to provide care to Medicare beneficiaries when the regular provider is out of the office for reasons such as medical or family emergency, maternity leave, continuing education, and even vacation. This issue is most relevant to private practice physical therapists because of their direct billing relationship with Medicare and the need to be certified via an in-person site visit. As you know, a practitioner must be credentialed at a specific location in order to be reimbursed for care provided to Medicare patients at that clinic. In contrast, physical therapists working in hospital settings don’t have this problem because their services are billed under the umbrella of the hospital, thereby allowing the facilities to simply hire any qualified therapist to make sure all the scheduled patients can be seen.

We sought to solve this problem through the passage of the Prevent Interruptions in Physical Therapy Act (HR 556/S.313)—a simple, technical, legislative fix that would add physical therapists to the list of providers eligible to use the locum tenens provision in Medicare. This bipartisan bill gained wide support, garnering 105 cosponsors in the House of Representatives and 33 cosponsors in the Senate.

We long argued that allowing physical therapists to bring in a substitute to ensure uninterrupted access to a physical therapist would save money and improve outcomes. Regrettably, the Congressional Budget Office (CBO), the accounting arm of Congress, didn’t agree. The formulas employed by the CBO do not consider savings generated nor the long-term outcomes produced when assessing the cost implications of a policy. Instead, CBO only looks at any given day, calculates the national cost of physical therapy on that day, then extrapolates from there. According to their accounting principles, any day that a Medicare beneficiary has access to physical therapy is a day when a cost is incurred. CBO doesn’t assign a cost to a patient’s regression and the additional visits necessary as a result of days a patient spends waiting for his or her physical therapist to return. Instead, CBO assesses a lower cost due to fewer physical therapy visits accomplished on a given day. Using this approach, CBO decided that our simple, technical, legislative fix carried a hefty price tag.

In June 2015, in an effort to reduce the overall cost of the legislation, the Senate Finance Committee passed a modified version of the Prevent Interruptions in Physical Therapy Act that only applied to therapists practicing in rural, medically underserved, and health professional shortage areas. In October 2015, the Health Subcommittee of the House Committee on Energy and Commerce held a hearing on locum tenens at which PPS board member Sandra Norby testified. Norby told the committee that because physical therapists cannot use the locum tenens provision, she endured considerable hardship in order to keep her remote clinic staffed and serving the community during a colleague’s maternity leave. Your lobbyists collected and distributed additional anecdotes from PPS members across the country. Many subcommittee members, armed with specific examples, took the opportunity during the hearing to highlight the experiences and needs of private practice physical therapists in their districts. The legislators spoke in strong support of the bill and its potential positive impact on their constituents.

In early December 2016, Congress passed a large health care package known as the 21st Century Cures bill. This legislation was a compilation of policies that bolstered investment in public health and funded efforts to improve the quality of health care. Among the many provisions of the 21st Century Cures package was the language of the Senate-passed version of the Prevent Interruptions in Physical Therapy Act. Under this newly passed law, physical therapists practicing in rural, medically underserved, and health professional shortage areas will be able to utilize Medicare’s locum tenens arrangements to contract with a qualified substitute physical therapist to provide care for their Medicare-enrolled patients. Using this mechanism, the contracting therapist would receive reimbursement for the care provided by the substitute therapist, and the locum tenens provider would be paid a fixed amount per diem. This arrangement can last up to 60 days. This expansion of Medicare’s locum tenens provision will go into effect as early as six months after passage of the law.

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Address and mitigate the negative effects associated with physician self-referral.
Current law, referred to as the Stark law, prohibits a Medicare or Medicaid patient’s physician from referring a patient to an entity providing designated health services if the physician (or an immediate family member) has a financial relationship with that entity. This is of grave concern to PPS because of the waste and overbilling that could result from a physician referring his or her patient for unnecessary or inappropriate care simply because the physical therapy practice was owned by that same physician. Furthermore, biased and self-serving referrals could impede beneficiary choice and access to the most appropriate care.

PPS remains steadfastly opposed to “referral-for-profit.” However, as health care policy moves toward increased integration, mechanisms such as bundled payment and accountable care organizations, it has become apparent that the bright lines restricting the referrals of patients to partner-providers have not only become strained but also an obstacle in many cases. As a result, policymakers are beginning to revisit the Stark law as a whole. Congress appears to be preparing to make changes that would allow for episode payment while relying on existing anti-kickback and anti-trust laws to protect against the waste and fraud and infringement of beneficiary choice that could result from self-referral.

The in-office ancillary services exception (IOASE) was originally created to allow physicians to self-refer and bill the Medicare program for typical same-day services such as X-rays. Unfortunately, abuse of the IOASE has functionally diluted the self-referral prohibitions of the Stark law and its policy objectives, making it simple for physicians to avoid the law’s prohibitions by structuring arrangements that meet the technical requirements while circumventing the intent of the exception. The PPS board endorsed this year’s Promoting Integrity in Medicare Act (PIMA) of 2016 (HR 5088), which would remove physical therapists from the IOASE. While physical therapists are eager to be removed from the IOASE, the legislative environment of the 114th Congress was not conducive to addressing this issue. The bill had exclusively Democrats as cosponsors. This is not a surprise, as members of the Republican party generally oppose restrictions to physician self-referral. As the discussion continues, we intend to communicate the cost and risk of self-referral—to the patients and to the providers.

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Achieve legislation that allows reimbursement through Medicare and federal health plans for physical therapy care through telehealth.
During the 114th Congress, more policymakers became interested in how telehealth could be used to improve access to quality and efficient care. As a result, three bills to expand Medicare reimbursement for telehealth were introduced. Legislative action is essential as the Centers for Medicare & Medicaid Services (CMS) made it clear that it cannot use its regulatory authority to reimburse physical therapists for telehealth.

The Furthering Access to Stroke Telemedicine (FAST) Act (HR 2799/S.1465) would allow for Medicare reimbursement, regardless of originating site, when telehealth is used to assess and diagnose patients with stroke. Current law grants reimbursement for this use of telehealth in rural areas only. Recognizing that approximately 94 percent of strokes occur in urban or suburban areas, members of Congress have sought to expand the policy nationwide. HR 2799 gained 171 cosponsors in the 114th Congress, while the Senate companion bill didn’t grow beyond its original two Republican cosponsors.

This past Congress, the CONNECT for Health Act (HR 4442/S.2484) was the primary telehealth bill in the Senate and contained a number of notable provisions. It would have allowed Medicare Advantage plans to offer telehealth as a basic benefit with no additional fee charged to the patient and sought to create a demonstration program allowing Merit-Based Incentive Payment System (MIPS) providers and those in Accountable Care Organizations (ACOs) to be reimbursed by Medicare for services provided via telehealth. Because physical therapists are not MIPS-eligible providers at this time, we worked to get a provision added to the bill that would empower the Secretary of Health and Human Services to include additional types of providers, including physical therapists. The bill also incorporated the goal of the aforementioned FAST Act by allowing for reimbursement of stroke assessment using telehealth. The CONNECT for Health Act had 32 cosponsors in the House and 18 cosponsors in the Senate. It is expected that a revised version of this bill will be reintroduced in the 115th Congress. We have been in close communication with its sponsors to make sure they understand the importance of including rehabilitation therapy in the reintroduced legislation.

Last Congress, 67 members of the House of Representatives signed on as cosponsors of the bipartisan Medicare Telehealth Parity Act (HR 2948), which would have expanded the list of distant-site providers eligible for Medicare reimbursement for care provided via telehealth to include physical therapists and other therapy provider groups. However, the legislation did not expand the “originating site” definition to include physical therapy locations, thus effectively excluding private practice physical therapists from reimbursement under this policy. We are working to correct this oversight before the bill is reintroduced to this Congress.

Promote policy that increases opportunities for veterans to receive outpatient services provided by physical therapists in private practice.
For the past few years, the public, and therefore the Congress, have been increasingly critical of the many obstacles that prevent veterans from accessing quality care in a timely manner. Congress responded by enacting a succession of laws, the Veterans Access, Choice and Accountability Act (“Choice Act”)1 and the Veterans Choice Improvement Act,2 which have empowered veterans to receive care in their communities and from community-based providers. We lobbied successfully to make sure that physical therapists are included in the list of providers able to care for veterans in their private practice clinic locations.

REGULATORY
In 2016, three proposed rules were published that impact physical therapy. Each of these regulations was relevant to the legislative and advocacy directive for the 114th Congress that was set forth by the PPS Board: Pursue improvements in the Physician Quality Reporting System (PQRS) that would result in appropriate participation and recognition of the value of physical therapy and promote the adoption by Accountable Care Organizations (ACOs) of quality measures that include functional health status. PPS filed comments on each of the following proposed rules on behalf of the membership and its interests.

Implementation of the Merit-Based Incentive Payment System
The passage of Medicare Access and CHIP Reauthorization Act of 2015 (MACRA) repealed the Sustainable Growth Rate (SGR) and tasked CMS to move Medicare reimbursement from payment for volume (fee-for-service) toward payment for value (quality). In May 2016, CMS published a proposed rule describing how it would implement the transition from Physician Quality Reporting System (PQRS) and other quality programs to a quality payment program known as the Merit-Based Incentive Payment System (MIPS).

As mentioned previously, physical therapists are not included in MIPS at this time but may be added to the program as early as 2019. We anticipate that the parameters for applying MIPS to physicians and other providers in this first group will provide us insight into how the program could impact physical therapists in the future. PPS submitted comments to caution CMS about the risks of the two-year gap in quality reporting (PQRS ceased to exist after December 2016) as well as to suggest that when the time comes to include physical therapists in the MIPS program that they be granted the same transition-year flexibility that is being granted to those clinicians participating these first two years. Additionally, we requested that CMS work with physical therapists to ensure appropriate and relevant measures are used to assess quality for physical therapy patients and providers. We stressed that when physical therapists are evaluated for quality under MIPS, the calculation should not hinge on infrastructure that physical therapists have not been required or supported to use, such as the use of an electronic health record system.

Medicare Physician Fee Schedule
Each year CMS issues regulations pertaining to the Medicare Physician Fee Schedule (MPFS). In 2016 the primary issue of concern to physical therapists revolved around the proposed adoption of new evaluation codes divided into tiers of low, moderate, and high complexity. The new codes were established through the sanctioned coding methodology long directed by the American Medical Association (AMA). Moreover, the codes were surveyed by the physical therapy profession through the APTA, and values were recommended that correspond to the complexity of service. In the proposed rule, CMS expressed its intent to adopt tiered evaluation codes but to value—and reimburse—all three evaluation codes at the same level. In its comments to CMS, PPS strongly urged the agency to adopt values and payment levels that correspond to the detailed complexity of each code descriptor. While CMS was unmoved by feedback from PPS and numerous other stakeholders that challenged the use of a single value for the varied complexity codes, CMS did hint that they plan to collect and analyze utilization data of the complexity levels for possible future rule making.3

That same proposed rule also identified a number of codes that CMS labels as “potentially mis-valued,” and the agency requested input on how to adjust their payment. In response, PPS told CMS that the AMA Relative Value Update Committee (RUC) is the appropriate entity to survey and value the codes. In its final rule, CMS did not make any adjustments to the value of those codes; instead they indicated that they plan to discuss the valuation of 10 potentially misvalued codes in the 2018 Medicare physician fee schedule update.

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Comprehensive Care for Joint Replacement
A third proposed rule sought to expand the current Comprehensive Care for Joint Replacement (CJR) episode payment model. The current model covers only total hip and total knee replacements. CMS proposed to expand that program to include patients undergoing surgical hip and femur fracture treatment (SHFFT) episodes. The expansion is pegged to launch on July 1, 2017, and to last 5 performance years—through December 31, 2021. In its comments to CMS, PPS reiterated its concern that the hospital-centric model granted excessive control to hospitals and inpatient post–acute care facilities.

Additionally, PPS asked CMS to clarify which entities are allowed to participate as “collaborators” under the model. This question was posed because some have interpreted the regulations to mean that only physician groups—not groups of suppliers such as physical therapists—were able to contract with the hospital as a group collaborator. If physical therapy group practices are not allowed to serve as collaborators, each physical therapist in a group would have to contract individually with a hospital in order to participate in the bundled payment program.

GRASSROOTS ADVOCACY
The Board’s adopted goals are associated with strengthening PPS’s grassroots legislative effectiveness, in part by growing and strengthening the Section’s federal Key Contact program.

PPS’s Key Contact Program has expanded considerably since its establishment in 2013. The goal of the program is to have a PPS member assigned to every member of Congress in leadership or on a committee with jurisdiction over health issues (Senate Finance Committee, Senate Health Education Labor and Pensions (HELP) Committee, House Ways and Means Committee, and House Energy and Commerce Committee). After adding 64 new Key Contacts this year, we have matched 232 PPS members with a member of Congress. We now have at least one Key Contact in each state, with the exception of Hawaii and Vermont. Ultimately, we aspire to have a PPS member assigned to every member of the House and Senate. We are always eager to welcome additional volunteers, especially as a new Congress is sworn in and some committee memberships will change.

Our Key Contacts are brought to Washington, D.C., by PPS for training and preparation for visits to their legislators. In April 2016, PPS sponsored a select group of PPS Key Contacts to attend the APTA Federal Advocacy Forum in Washington, D.C., and receive a presentation tailored to focus on PPS advocacy priorities. These Key Contacts also went to Capitol Hill and effectively lobbied their members of Congress on issues of particular relevance to the private practice physical therapist, shared their perspective on PPS’s legislative priorities, and achieved additional cosponsors on key bills. A Key Contact’s work continues back at home where they meet with legislators, host site visits at their clinics, and attend public events and fundraisers. Each of these venues provides the Key Contact with an opportunity to engage with their legislators on behalf of the profession and the patients served.

Since January 2016 a monthly legislative update has been distributed to Key Contacts to ensure they have the most up-to-date news regarding the legislative efforts and activity on Capitol Hill. These updates include a hyperlink to the list of cosponsors for each bill to enable the Key Contact to readily determine whether their target legislator has cosponsored the bills discussed.

Grassroots engagement is the foundation of the PPS advocacy program, and the Key Contacts are the agents for change. If you are interested in becoming a Key Contact, please contact the PPS office.

2017
Much of the momentum we built last Congress has laid the groundwork for our ability to move legislation in the future. In January 2017, a new Congress will be sworn in with some new members in each chamber. Of particular importance is that leadership positions on the two House committees that oversee health care issues have changed. Representative Greg Walden (R-OR) will be the new Chair of the House Energy and Commerce Committee, and Representative Richard Neal (D-MA) will be the new Ranking Member of the House Ways and Means Committee. In the Senate, the leadership of the Finance and Health, Education, and Labor and Pensions (HELP) committees has stayed the same.

In order to prepare for the 115th Congress, PPS’s Board of Directors and the Government Affairs Committee have updated the PPS legislative and advocacy priorities. These priorities respond to the changing landscape of health care policy and reflect emerging as well as ongoing priorities of the Private Practice Section. The Section’s lobbyists will use these priorities as the guide for PPS advocacy efforts for the next two years. We will continue to work with both sides of the aisle and in both chambers to identify and act on opportunities to advance our legislative agenda. We will also respond to the regulatory proposals that are increasingly coming our way. On both fronts, PPS grassroots engagement is critical to our efforts, so please continue to be involved.

References

1. Public Law 113-146, www.congress.gov/113/plaws/publ146/PLAW-113publ146.pdf.

2. Public Law 114-41, www.congress.gov/114/plaws/publ41/PLAW-114publ41.pdf.

3. CMS-1654-F: Medicare Program; Revisions to Payment Policies Under the Physician Fee Schedule and Other Revisions to Part B for CY2017; Medicare Advantage Bid Pricing Data Release; Medicare Advantage and Part D Medical Loss Ratio Data Release; Medicare Advantage Provider Network Requirements; Expansion of Medicare Diabetes Prevention Program Model; Medicare Shared Savings Program Requirements, www.gpo.gov/fdsys/pkg/FR-2016-11-15/pdf/2016-26668.pdf, p. 80335.

4. CMS-1654-F, p. 80339.

Lillstron

Alpha Lillstrom Cheng, JD, MA, is a registered federal lobbyist working with Connolly Strategies & Initiatives, 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 Senators Bob Casey, Al Franken, Russ Feingold, and Mark Begich. She was Senator Franken’s Policy Director during his first campaign and was hand-picked to be the Recount Director for his eventual 312-vote win in 2009.

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Jerome Connolly, PT, CAE, is a registered federal lobbyist whose firm, Connolly Strategies & Initiatives, has been retained by PPS. A physical therapist by training, he is a former private practitioner who throughout his career has served in leadership roles of PPS and APTA. Connolly also served as APTA’s Senior Vice President for Health Policy from 1995 to 2001.

CMS Seeks to Expand Comprehensive Care for Joint Replacement Model to Surgical Hip and Femur Fracture Treatment Episodes

advocacy
By Alpha Lillstrom Cheng, JD, MA

The Centers for Medicare & Medicaid Services (CMS) remains focused on regulations to move away from fee-for-service (FFS) and toward value-based payment systems. The first Comprehensive Care for Joint Replacement (CJR) model was implemented this April. Then on August 2 CMS proposed an expansion of the current CJR bundling provisions for total hip (THA) and knee (TKA) arthroplasty to a model that will include Medicare beneficiaries undergoing surgical hip and femur fractures treatment (SHFFT) episodes.

In 2010, 258,000 people aged 65 and older were admitted to the hospital for hip fractures, with an estimated $20 billion in lifetime cost for all hip fractures in the United States in a single year. In 2013, fracture of the neck of the femur (the most common location for hip fracture) was the eighth most common principal discharge diagnosis for hospitalized Medicare fee-for-service beneficiaries, constituting 2.7 percent of discharges.

CMS argues that by structuring payment around a patient’s total experience of care, in and out of the hospital, bundled payments support better care coordination and ultimately better outcomes for patients. These new models support President Obama’s Administration goal to have 50 percent of traditional Medicare payments flowing through alternative payment models by 2018 (at this time, 30 percent of Medicare payments go through alternative models).

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Mechanics of the Model

The same acute care hospitals in the 67 regions selected for last year’s model have been tapped to participate in this proposed expansion. The SHFFT episode of care would begin in the anchor inpatient prospective payment systems (IPPS) hospital where the patient is admitted for surgical hip/femur fracture treatment and would last for 90 days postdischarge. Throughout the year acute care hospitals, providers, and suppliers would be paid for their services according to the usual Medicare FFS payment systems. At the end of the year, however, the actual episode payment (total expenditures for related services under Medicare Parts A and B) would be reconciled against an established episode payment model quality-adjusted target price for the responsible hospital. A participating hospital could either earn a financial reward or be required to repay Medicare for a portion of the costs—depending on the hospital’s quality and cost performance during the episode. Bonus payments would be earned when the needed care met or exceeded quality standards and was delivered for less than the quality-adjusted target price. If costs exceeded the quality-adjusted target price, participating hospitals would be required to repay the difference to Medicare. As in the original CJR, hospitals are able, but not required, to contract with community-based providers to include them in the gainsharing or shared-risk portions of the payment model. Community-based providers would not interact directly with Medicare for this reconciliation process; the hospital would be the bundled payment transaction partner with Medicare.

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Hospital Collaboration with Providers and Suppliers

Like the existing CJR model, beneficiaries choose where and with whom to complete their SHFFT rehabilitation. Physical therapists may but are not required to enter into a contractual relationship with the participating hospital in order to provide and be paid for care. While these parameters may seem sufficient at face value, Private Practice Section (PPS) members have experienced the impact of the model’s inadequate incentives for hospitals to refer to and collaborate with community-based outpatient therapy providers.

PPS members have found the CJR collaboration guidelines insufficient for ensuring that nonphysician group practices—such as private practice physical therapy groups—may become collaborating agents with participant hospitals. The current regulations require that “physician, non-physician, and physician group practice CJR collaborators” must directly furnish services to CJR beneficiaries in order to receive Medicare Physician Fee Schedule payment under these financial arrangements. While physician group practices are specifically listed as an eligible CJR collaborator, no mention is made of how to treat nonphysician group practices (such as private practice physical therapists practicing as a group) who desire to contract with participant hospitals as collaborators. Some are interpreting this to mean that only physician group practices may enter into collaborator agreements as a unit, and therefore believe that all nonphysician providers and suppliers are limited to individual collaborator agreements only. Others interpret the regulations to allow for group practice contracts because physical therapy group practices are defined as suppliers, and the CJR regulations empower “providers and suppliers of outpatient therapy” to participate as collaborators. If therapy practice groups were permitted to contract with a hospital as a collaborator, it would be up to the practice group to ensure that financial exchanges with the participating hospital were attributed exclusively to the physical therapists who furnished services directly to CJR beneficiaries.

Consequently, in its comments to CMS on the proposal to expand CJR to SHFFT episodes, the American Physical Therapy Association (APTA) Private Practice Section (PPS) requested that CMS clarify the regulations to explicitly permit nonphysician practice groups to enter into collaborative agreements with participating hospitals. PPS pointed out that “limiting access to individual therapists only and excluding practice groups from collaborative agreements is shortsighted, unfounded and outdated; it also adds an unreasonable and detrimental obstacle for patients to be able to access their choice of providers.”

Beneficiary Choice

One of CMS’s primary goals for implementing bundled payments is to encourage coordination and collaboration among all providers involved in a patient’s care. Even in the hospitals where Medicare beneficiaries must participate in the model, these patients retain the right to obtain health services from any eligible Medicare provider, and the outpatient providers or suppliers need not have a contractual relationship with the originating hospital. However, this expansion of the CJR model to SHFFT episodes still places an unreasonable amount of power in the hands of hospitals, thereby allowing these large facilities to direct patient care in a way that could functionally exclude the use of community-based providers. The model is riddled with weak safeguards which to date have failed to support patients’ freedom of choice of providers. For example, hospitals may not prevent nor restrict beneficiaries to any list of preferred providers, but at the same time they may recommend preferred postdischarge providers to the beneficiary. While hospitals are required to supply Medicare beneficiaries with written information regarding their right to use their provider of choice, hospitals are not required to provide a list of all the local options for postdischarge care.

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These requirements have been insufficient to overcome a hospital’s inherent bias to resist referring out-of-system. Some PPS members have reported an up to 30 percent drop in referrals from hospitals participating in the CJR model for THA and TKA. PPS has requested that CMS implement greater safeguards to ensure the inclusion of private practice professionals and outpatient providers who have demonstrated, or can demonstrate, effectiveness and efficiency of care. PPS argued that at minimum, “Beneficiaries should be provided a written list of all of the local providers from whom they can choose to receive their SHFFT rehabilitation therapy.”

The CMS template Beneficiary Notification lists “nursing homes (skilled nursing facilities), home health agencies, inpatient rehabilitation facilities, and long-term care hospitals” as the types of postdischarge providers that a Medicare patient could choose from to complete their necessary rehabilitation; CMS failed to list outpatient physical therapy as an option. PPS pointed out in its comments that this egregious omission could be interpreted by a lay Medicare beneficiary and health care consumer to suggest exclusively residential post–acute care settings and purposefully exclude the option of outpatient physical therapy. The failure to explicitly mention any outpatient rehabilitation therapy setting is a repeat of other areas in the proposed rule where the important contribution of physical therapists goes unrecognized and unmentioned.

Conclusion

CMS is seeking to expand the current CJR model to surgical hip and femur fracture treatment, with the goal of simultaneously achieving cost savings and better care for patients through more coordinated, higher quality care. CMS once again has chosen a hospital-centric model through which to achieve this objective. In its comments to CMS, PPS voiced its strong concerns that the model fails to provide sufficient safeguards to ensure that nonhospital providers and suppliers—particularly those in private practice—are a functional and accessible part of a CJR care team.

Now that we have experienced the first chapter of the CJR model as applied to THA and TKA, it has become clear that a PPS member must be proactive in order to not be negatively impacted by this model. Because the regulations are unclear, PPS has requested clarification from CMS with regard to limitations on physical therapy group practices being able to be collaborating agents with hospitals. While a private practice physical therapist may provide care to patients without entering into a collaborator agreement, it could be beneficial, essential, or desirable to their practice to be a contractual collaborator. Should a physical therapist be interested in engaging with the hospital as a CJR collaborator, please look to the PPS website for tools and a model agreement that has been drafted specifically for PPS members.

References

1. www.gpo.gov/fdsys/pkg/FR-2015-11-24/pdf/2015-29438.pdf. Published November 24, 2105.

2. Smith et al. Increase in disability prevalence before hip fracture. J Am Geriatr Soc. 2015 Oct; 63(10): 2029–2035.

3. Krumholz HM, Nuti SV, Downing NS, Normand ST, Wang Y. Mortality, hospitalizations, and expenditures for the Medicare population aged 65 years or older, 1999–2013. JAMA. 2015; 314(4):355–365.

4. www.gpo.gov/fdsys/pkg/FR-2015-11-24/pdf/2015-29438.pdf, 73229 Table 4, 73276.

5. Surgical hip/femur fracture treatment (SHFFT) model episodes would be initiated by claims for hip and femur procedures, except major joint, MS-DRGs 480-482.

6. www.gpo.gov/fdsys/pkg/FR-2016-08-02/pdf/2016-17733.pdf, p. 50801.

7. PPS comments to CMS regarding expansion of CJR model to include SHFFT episodes, www.ppsapta.org/userfiles/File/PPS%20Comments%20CMS_CJR%202016%2010%2003.pdf, p. 7.

8. www.gpo.gov/fdsys/pkg/FR-2016-08-02/pdf/2016-17733.pdf, p. 50803.

9. PPS comments to CMS regarding expansion of CJR model to include SHFFT episodes, www.ppsapta.org/userfiles/File/PPS%20Comments%20CMS_CJR%202016%2010%2003.pdf, p. 7.

10. https://innovation.cms.gov/files/x/cjr-beneletter-hospital.pdf.

11. https://innovation.cms.gov/files/x/cjr-beneletter-hospital.pdf.

Lillstron

Alpha Lillstrom Cheng, JD, MA, is a registered federal lobbyist working with Connolly Strategies & Initiatives, 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 Senators Bob Casey, Al Franken, Russ Feingold, and Mark Begich. She was Senator Franken’s Policy Director during his first campaign and was hand-picked to be the Recount Director for his eventual 312-vote win in 2009.

Choosing a President

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How will your choice affect your business?

By Jerry Connolly, PT, CAE

The conventions of the national political parties have come and gone and a historic presidential election approaches. It has been a tumultuous primary season with results that few predicted; a political outsider as the candidate of the usually more traditional GOP, and the first woman as the nominee of a major political party.

Donald J. Trump was nominated by the Republicans in July and received a small polling bump coming out of the convention. A week later, Hillary Rodham Clinton was named to head the Democratic ticket amid questions of her campaign’s ability to unify the party. In the ensuing weeks and months, it has been the Republicans who have faced division in their ranks. Clinton’s postconvention rise in the polls has been determined to be less her own doing and more a result of Trump’s inability to stay on message. This is reminiscent of an Old West fable about the cowboy who brushed his teeth every morning with gunpowder, then spent the rest of the day shooting off his mouth. Needless to say, he didn’t become sheriff.

As this column is being written, Republicans are worrying if the public’s image of Trump is beyond repair. His gunpowder-for-toothpaste moments include calling Mexicans rapists, mocking a disabled reporter, and getting into a verbal fight with the parents of a fallen soldier.

Because both major candidates suffer terrible public approval ratings, many Americans display disappointment, even anger, about their Election Day choices. Polls suggest that some will vote for their candidate, but most will vote against a nominee.

Nevertheless, the choice is to be made: to vote or not. If it is the former, then for whom do you pull the lever? While there are many reasons a person may earn your eventual vote, this column will view our choices through the lens of health care.

Donald Trump and Hillary Clinton have been very vocal about their positions on health care issues. Lesser-known candidates, but also on the ballot in most states1 Libertarian Gary Johnson and Green Party nominee Dr. Jill Stein have health care views that are more difficult to ascertain. But for the sake of comparison, all four of these campaigns were researched.

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Businessman Trump favors a universal “market-based” plan that would offer a range of choices. He wants to return authority to the states and operate under free market principles. He favors allowing individuals to buy insurance across state lines and would provide individuals tax relief to help make health insurance affordable.2

Former Senator and Secretary of State Clinton promises to defend and expand the Affordable Care Act (ACA), reduce out-of-pocket costs and the cost of prescription drugs, and ensure women have reproductive health care. She also wants to expand access to health care for rural Americans and will continue the transformation of the health care system to reward value and quality.3

Libertarian candidate Johnson opposes federal government health insurance requirements and thinks Obamacare will cause the U.S. economy to “collapse.” In October 2012, the former New Mexico governor called the ACA “a torpedo in a sinking ship.”4

The idea that government can require an individual to buy something simply because that individual exists and breathes in America is an incredible blow to the bedrock principles of freedom and liberty. Says Johnson, “Government cannot create a system that will reduce costs while increasing access. Only competition and the price transparency that competition will bring can accomplish the imperatives of affordability and availability.”4

Green candidate Stein believes health care is a human right and supports a “Medicare for All” single-payer public health insurance program to provide everyone with quality health care at a reduced cost. Moreover, the internal medicine physician maintains that Americans can lower health care costs by reducing pollution, making consumer products safer, integrating public transportation with walking and biking, and increasing the availability of healthy food choices.5

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Stein does not defend the ACA because she believes we cannot grow our way incrementally to a single-payer system. “You have to kiss it goodbye and expand Medicare in one fell swoop.” In addition, the environmental health activist believes health care costs will be reduced by eliminating the endless stream of pollution into our air, our water, our consumer products, etc., that derive from fossil fuels.6

Diving more deeply into the positions of the candidates of the two major parties who will appear on the ballot nationwide, we find that Clinton supports a public-option insurance plan and allowing Americans to enroll in Medicare when they turn 55. In a statement released in July of this year, Clinton affirmed “her commitment to give Americans in every state the choice of a public-option insurance plan, something she has supported during this campaign and going back to her 2008 presidential campaign.”7

Under her affordable health care and prescription drug plan, a patient could make three sick visits to a doctor without it counting toward their annual deductible, families ineligible for Medicare could receive a tax credit for out-of-pocket health care expenses, prescription drugs for patients with chronic or serious health conditions would be capped at $250 per month, and prescription drug imports from Canada would be legal. Clinton favors increased funding for autism and Alzheimer’s research and treatment.8

Clinton identifies her greatest political regret as failing to pass health care reform in the early 1990s. She told AOL.com, “Health care is a basic right. We are 90 percent covered, we gotta get to 100 percent, and then we gotta get cost down and make it work for everybody. And even though we didn’t get it then, we’ve got it now and I’m going to defend it and improve it.”9

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Trump’s health care reform plan is based on “free market principles.” He would repeal Obamacare, reduce barriers to the interstate sale of health insurance, institute a full tax deduction for insurance premium payments for individuals, make Health Saving Accounts inheritable, require price transparency, block-grant Medicaid to the states, and allow for more overseas drug providers through lowered regulatory barriers. He has also said he opposes cuts to Medicaid and Medicare. Trump believes that enforcing immigration laws could reduce health care costs.10

Trump claims the insurance companies are getting rich on Obamacare. And that he wants to revitalize free enterprise in health care financing and delivery. But he acknowledges that such an approach inevitably leaves people behind. “We need to take care of those people,” he said.11

Trump suggested that he supported universal health care on September 27, 2015. “I am going to take care of everybody. I don’t care if it costs me votes or not. Everybody’s going to be taken care of much better than they’re taken care of now,” he said.12

It has been said about many elections that voting doesn’t really matter because there isn’t much difference between the candidates. Comparing the above four candidates on health care alone, suggests that this year the candidates are distinguishable and the choices are clear.

Whatever you think about those choices, at least we live in a country where we are privileged to have one. Vote on Election Day.

comparing-positions  

References

1. Libertarian Party candidate for president will appear on the ballot in 39 states. The Green Party will be on the ballot in 27 states. https://ballotpedia.org. Accessed August 12, 2016.

2. Diamond D. Donald Trump hates Obamacare – so I asked him how he’d replace it. Forbes, July 31, 2015.

3. Clinton Campaign Website, www.hillaryclinton.com.

4. Goins C. Libertarian nominee Gary Johnson on Obamacare: “a torpedo in a sinking ship.” Politic365. Accessed October 17, 2012.

5. Scheer R. Scheer Intelligence: Jill Stein – Presidential Candidate. Huffington Post, February 8, 2016.

6. Stein J, Schettler T, Rohrer B, Valenti M. Environmental threats to healthy aging. Greater Boston Physicians for Social Responsibility and Science and Environmental Health Network, 2008. www.agehealthy.org/pdf/GBPSRSEHN_HealthyAging1017.pdf.

7. Kelly N. Hillary Clinton to Congress: come back to D.C. and fund Zika research. The Atlantic, August 9, 2016.

8. Hillary Clinton Presidential Campaign, 2016/Healthcare. https://ballotpedia.org.

9. Rappeport A, Sanger-Katz M. Hillary Clinton takes a step to the left on health care. New York Times, May 10, 2016.

10. DonaldJTrump.com. Healthcare reform to make America great again. Accessed March 3, 2016.

11. Team Fix. Transcript of the New Hampshire GOP debate, annotated. Washington Post, February 6, 2016.

12. Diamond D. On ‘60 Minutes,’ Donald Trump says Obamacare is a disaster – but his own plan is even worse. Forbes, September 27, 2015.

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Jerome Connolly, PT, CAE, is a registered federal lobbyist whose firm, Connolly Strategies & Initiatives, has been retained by PPS. A physical therapist by training, he is a former private practitioner who throughout his career has served in leadership roles of PPS and APTA. Connolly also served as APTA’s Senior Vice President for Health Policy from 1995 to 2001.

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