Pushing back on CMS’ Proposed 8% cut
By Alpha Lillstrom Cheng, JD, MA
In pursuit of PPS’s legislative and advocacy priorities for the 116th Congress, we engage with both the legislative and executive branches.
While bills passed by Congress and signed into law by the president are binding, the policy is not yet complete. Laws only provide a foundation and framework for the policy they are mandating. It is the responsibility of the appropriate executive branch agency to promulgate regulations—either in the form of finishing touches needed to implement policy or updates to existing policy and regulations necessary to maintain industry standards and meet best practices.
When advocating for regulatory changes, PPS works with any and all relevant federal agencies of the executive branch. In pursuit of the Section’s policy priorities we most often communicate with the Department of Health and Human Services’ Centers for Medicare and Medicaid Services (CMS) while seeking to ease the regulatory burden placed upon physical therapists in private practice.
Regulations Seek to Impose an 8% Cut to Payment in 2021
The proposed 8% cut to Medicare payments for physical therapy services that we are fighting is a perfect example of the types of changes to payment that are the result of regulatory change. To best illustrate the steps of the advocacy process, this article will use a timeline format to show when and how PPS members were and can continue to be directly involved, as well as when the burden falls upon PPS as an organization to represent the interests its members and the patients they care for.
On Aug. 14, 2019, CMS published its 2020 Medicare Physician Fee Schedule (MPFS) proposed rule. That proposed rule suggested that cuts to Medicare specialty providers, beginning with calendar year 2021 payments, were necessary to maintain budget neutrality when CMS planned to increase in evaluation and management (E/M) codes. While the proposed cuts to specialties ranged between -1 and -10%, an 8% decrease in Medicare reimbursement was slated for physical therapy services.1
Fully grasping the need to push back on CMS’ untenable proposal of an 8% cut, PPS began a full-court press against CMS’ plan to cut physical therapy reimbursement. As you know, effective advocacy combines strong policy positions with anecdotes to illustrate how a particular policy would impact providers and patients—including insights into unintended consequences of a proposal. At times like this, it is especially important to educate policymakers about how physical therapy is practiced and accessed in all communities across the country—not just the larger, urban, or hospital-based facilities they might be more familiar with.
PPS encouraged members to speak up to help protect their interests. First, members were asked to send in anecdotes explaining how this proposal would impact their business—both functionally and financially—so that PPS could collect and share the impact examples with the executive branch as well as members of Congress and their staff. PPS members were also encouraged to use APTA’s template letter to write directly to CMS to express their opposition to the proposed cuts.
Utilizing member feedback and input, PPS filed a comment letter in opposition to the proposed 8% cut to payment in 2021. That letter explained the negative impact CMS’ proposals would have on private practice PTs and the Medicare beneficiaries they seek to care for. PPS also pointed out that the timing of such cuts could undermine the ability of PTs to be part of the solution when addressing pain management through non-pharmacological interventions. All told, before the public comment period closed on Sept. 27, 14,000 public comments about physical therapy issues were submitted to CMS.
Simultaneously, PPS worked closely with APTA to encourage members of Congress to also weigh in with the agency and challenge the drastic cut to reimbursement. As a result of this advocacy, and the ability to bring the issue directly to U.S. Representatives during PPS’s Key Contact program Advocacy Hill Day, members of the House of Representatives sent a bipartisan letter to CMS in strong opposition to the 8% cut. Representative Bill Johnson (R-OH) led the letter from 33 Republicans and 22 Democrats, which stated that “arbitrary, across-the-board cuts to codes PTs and occupational therapists bill when providing services to Medicare beneficiaries will impede access to essential services provided to seniors and individuals with disabilities.” The Congressional letter also pointed out the short-sightedness of the cuts at a time when PTs are on the front lines addressing pain management for many who would otherwise use opioids to address their pain.
On Nov. 15, CMS published the MPFS final rule. Unfortunately, our concerns with respect to the 8% cut were ignored. CMS made no changes (for any specialty) and decided to finalize their proposal, which is a cut of 4% for work and 3% for practice expense RVUs for physical and occupational therapy. After rounding, this ends up an 8% cut for PT services beginning with calendar year 2021 payments.2 After thousands of physical therapists and other stakeholders pushed back against these proposed cuts, we were shocked that CMS was unmoved and provided no explanation nor rationale for its decision.
While we are distraught and frustrated, the final rule noted that the cuts are “for illustrative purposes only.” In doing so they were acknowledging that other changes to payment rates finalized for CY2020 had not been included in the calculations. Furthermore, the effective date of CY2021 left the door open for further engagement with stakeholders before the cuts go into effect. Since the MPFS CY2020 final rule was published, PPS has been working closely with APTA to ensure that CMS understands the impact these cuts would have upon patients and the physical therapy profession. Our goal is to compel CMS to undertake further analysis of the issue and walk-back the magnitude of the payment reduction.
PPS joined a coalition of provider groups who share the common goal of pushing back against the arbitrary cuts to payment. Representatives from APTA, PPS, American Occupational Therapy Association (AOTA), American Speech-Language-Hearing Association (ASHA), American Academy of Audiology, American Psychological Association, American Chiropractic Association (ACA), National Association for the Support of Long Term Care (NASL), National Association of Rehabilitation Providers and Agencies (NARA), American Health Care Association (AHCA), Alliance for Physical Therapy Quality and Innovation (APTQI), Academy of Nutrition & Dietetics, and the National Association of Social Workers (NASW) gathered to discuss avenues through which to advocate.
Continuing the fight for favorable and equitable payment, PPS and coalition members met with CMS on Jan. 13 to make sure that the agency realized the impact of the regulations they put forth. We presented a number of issues, including that we fully expect that some providers will have to close their doors or not be able to provide care to Medicare patients because they are unable to weather an 8% cut in reimbursement. We also pointed out that because physical therapists don’t bill E/M codes and aren’t able to fully participate in the Merit-Based Incentive Payment System (MIPS) or alternative payment models, that there is no real way for providers to make up that kind of a cut within the Medicare program. Finally, we reminded the CMS staff that Medicare rates are used as the baseline for many private payors and state-based payment so the cut will have widespread impact beyond simply reimbursement for care provided to Medicare beneficiaries. CMS welcomed our input and asked us to follow up with specific policy suggestions for how to mitigate the cuts.
Throughout the month of January, members of the coalition also worked to garner robust support for a letter that members of Congress were preparing to send to CMS on our behalf. Representatives Buddy Carter (R-GA) and Lisa Blunt-Rochester (D-DE) decided to lead the bipartisan letter. In mid-January an action alert was sent to all the PPS key contacts asking for their help getting their assigned representatives on this letter. Later in January, all PPS members received a similar action alert. Many of you weighed in with your members of Congress and your elected officials responded to your request.
We continued to work on many fronts, hoping to mitigate or delay the implementation of the proposed 8% cut in reimbursement. We asked members of Congress for their assistance while PPS and other similarly-situated stakeholders continued to put pressure upon the agency. On Feb. 5, a bipartisan letter, signed by 99 members of the House of Representatives was sent to CMS and while it did not make any policy suggestions, it asked two pointed questions. The first was about the factors, methodology, and data CMS used to calculate each estimated specialty level impact associated with implementing the changes to the office/outpatient E/M code set. The second question asked what additional information about changes to beneficiary access would be most useful to CMS as it prepares the 2021 MPFS. When received, CMS’ response will be posted on the Advocacy page of the PPS website.
As a result of our advocacy and the engagement of his PPS key contact, Senator Jon Tester (D-Montana) sent his own letter to CMS challenging the cut and asking for the agency to examine the impact such a reduction in reimbursement would have upon the ability for those living in rural areas to access care.
While it was important to get members of Congress on record forcing CMS to be accountable for its methodology and asking CMS for transparency, that is not enough. In response to CMS’ request, PPS and 12 other impacted specialty organizations sent a letter that offered the agency suggestions for how to mitigate the proposed cuts in ways that would also accommodate an increase in E/M codes. The letter made it clear that we were not opposing the increase in E/M codes, simply challenging the way they were to be paid for. The coalition encouraged CMS to consider how it can implement adjustments so that they are spread across a broader cross-section of services in order to avoid burdening specific provider groups and patient populations. CMS was also asked to utilize a transparent process that evaluates the specific impacts on codes, procedures, and the ability of all provider specialties continue to meet Medicare’s program and beneficiary needs.
PPS, along with APTA and APTQI, also offered suggestions to CMS that were specific to physical therapy. We reiterated the concerns expressed in the coalition letter, but also reminded CMS that an 8% reduction in Medicare Part B reimbursement for physical therapy should not be viewed in isolation because since 2011 Congress and the administration have implemented changes to reimbursement practices and policies that have resulted in multiple cuts to physical therapy reimbursement rates. We pointed out that arbitrary and significant adjustments to the fee schedule targeting non-E/M billing specialties would certainly cause disruptive reductions to revenue which, in turn, will severely jeopardize patient access to care. We reminded CMS that we do not believe the intent of this policy was to improve payments for the evaluation and management of care while simultaneously forcing the closure or financial hardship of specialties needed to furnish that care. Furthermore, we reminded CMS that their policies do not stand in isolation; if the agency implements an 8% cut to outpatient physical therapy services, that policy is likely to be adopted by private insurers and will create a challenging and likely untenable financial circumstance that will adversely impact patients’ access to care and the ability of PTs to continue to furnish care to beneficiaries.
When CMS begins to craft the CY2021 MPFS proposed rule, external conversations cease. Meanwhile, PPS continues to engage with lawmakers to work against the implementation of these cuts. We will have to wait until July, when the proposed rule is expected to be published, to see the impact of our extensive advocacy.
Enable PPS to Better Represent You and Your Practice
In contrast to the legislative branch—which has an open-door policy for conversations with constituents and stakeholders—the executive branch follows rigid protocols. Agencies are required by law to develop, propose, invite, and review public comment, and then finalize regulations to either implement legislation that has been recently become law or to modify previous regulations to better match the policy priorities of the current administration.
Agencies are required to publish a proposed rule for each regulatory change they are pursing. Proposed rules are published in the Federal Register and welcome public comment. PPS takes this opportunity to publicly weigh in on the proposed changes. We encourage PPS members to also comment in order to communicate to the agency the gravity of their proposed changes and to provide regulators with a wide-range of feedback and illustrative anecdotes from PTs in private practice. This is especially important because while stakeholder organizations such as PPS and APTA have the ability to engage with the administration and executive branch staff throughout the year, there is only a single opportunity per regulatory change for the general public to weigh in.
The information you share with PPS helps us make sure policymakers understand the consequences of policy changes they propose. In the case of an 8% cut, there is a crucial need for impact statements. We need the Agency to realize that drastic cuts to payment will compound the access to care, rising debt, and challenges of shrinking reimbursement.
For all of you who have responded to our requests for advocacy on this issue, thank you. However, our work is far from complete. As opportunities arise, PPS will continue to ask for your help. If you see an action alert in your inbox, please respond. Thank you ahead of time for your efforts—every little bit helps us push the issue.
The fight continues! The fruits of our labor can ripen at any time, so for the most up-to-date information, you can always check out the PPS Legislative Update Blog and peruse the PPS Advocating for You section of the website. Your advocacy is important and can really make a difference; because silence can imply consent, it is important to remember that your outreach and engagement speaks volumes.
1Table 111: Estimated Specialty Level Impacts of Proposed E/M Payment and Coding Policies if Implemented for CY 2021, CMS 1715-P. Govinfo.gov website. https://www.govinfo.gov/content/pkg/FR-2019-08-14/pdf/2019-16041.pdf. Published August 14, 2019.
2Table 120: Estimated Specialty Level Impacts of Finalized E/M Payment and Coding Policies. CMS-1715-F. Federal Register website. https://www.federalregister.gov/documents/2019/11/15/2019-24086/medicare-program-cy-2020-revisions-to-payment-policies-under-the-physician-fee-schedule-and-other. Published November 15, 2019.
Alpha Lillstrom Cheng, JD, MA, is a registered federal lobbyist and a principal in the firm Lillstrom Cheng Connolly, which has been retained by PPS. An attorney by training, she provides guidance to companies, nonprofit organizations, and political campaigns.