2015 Year in Review

Benchmarking Price for Outpatient Physical Therapy Services

By Alpha Lillstrom

January 1, 2016

Congress

Representative Paul D. Ryan (R-WI) was elected to be the 54th Speaker of the House on October 29 on the retirement of Speaker John Boehner (R-OH). While Speaker Ryan is the youngest to take the gavel since 1869, he has decades of legislative experience having served as legislative staff on the Hill long before he was elected to office. In recent years, he attracted national attention for his sweeping proposals to overhaul Medicare through the use of premium support (through vouchers) and to restructure the tax code. He was also Mitt Romney’s Vice Presidential running mate in the 2012 presidential election.

On becoming Speaker of the House, Ryan resigned as chairman of the House Ways and Means Committee. On November 4, Representative Kevin Brady (R-TX), who had been the chair of the Health Subcommittee, was chosen by the Republican Steering Committee to be the new chair of the full Ways and Means Committee. Brady’s elevation to Chair of the full committee opened up the position on the Ways and Means Health Subcommittee. On November 18, Rep. Pat Tiberi (R-OH) was named the new Chair of the Health Subcommittee. While Tiberi had already been a part of the full committee, he is new to the Health Subcommittee. Representative Erik Paulsen (R-MN) was also tapped to be a member of the Ways and Means Health Subcommittee.

Advocacy

It has been an exciting year for Private Practice Physical Therapy. To prepare for the new Congress that is sworn in this month, the board of directors and the Government Affairs Committee updated the Private Practice Section (PPS) legislative and advocacy priorities. These priorities are being used by the Section’s lobbyists as the guide for PPS advocacy efforts during this 114th Congress, which is now at its midpoint. The priorities that have experienced the most attention and activity are found below in bold.

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 are the highest priorities for PPS.

On April 16 of this year, the Sustainable Growth Rate formula was repealed and replaced by the passage of the Medicare Access and Children’s Health Insurance Program (CHIP) Reauthorization Act of 2015 (Medicare Access and Reauthorization Act of 2015 (MACRA) Public Law. 114-10¹). PPS actively participated in the broad Medicare payment coalition that was able to achieve this 15-year-old goal. In the same legislation, the therapy cap exceptions process was extended through calendar year 2017. PPS and the Therapy Cap Coalition lobbied vigorously for the inclusion of therapy cap repeal in this must-pass SGR legislation. However, these efforts were unsuccessful.

In an effort to include the provision in the bill, Senators Ben Cardin (D-MD) and David Vitter (R-LA) offered an amendment on the Senate floor to fully eliminate the therapy cap. The PPS grassroots network was activated and physical therapists (PTs) were heard. Fifty-eight senators voted in favor of the amendment. Unfortunately, under Senate rules, 60 votes were required for passage. Had the amendment received 60 votes (and there is good reason to believe that more than two additional senators wanted to vote to repeal but held back for political not policy reasons), therapy cap repeal would have been included in the “doc fix” bill. While clearly disappointed, we are nonetheless gratified to have 58 senators on record in support of permanently repealing this arbitrary and discriminatory beneficiary therapy cap. Several senators, including members of leadership, indicated after this vote that they would work for another opportunity to repeal the provision later in this congressional session. We and the broad Therapy Cap Coalition continue to pursue this legislative goal.

Achieve legislation that allows physical therapists in private practice to optout of Medicare or privately contract with Medicare patients.
The Medicare Patient Empowerment Act (H.R.1650/S.1849), reintroduced by Representative Tom Price (R-GA) and Senator Lisa Murkowski (R-AK), respectively, would modernize the Medicare statute by allowing a Medicare beneficiary to enter into a private contract with an eligible professional (EP)—regardless of whether the EP is a participating or nonparticipating physician or practitioner—for any item or service covered by Medicare. This legislation not only includes physical therapists in the list of eligible professionals, but would also modify existing law to allow for one-to-one billing relationships between a provider and a Medicare beneficiary. Current law only allows for a practice-wide opt-out of Medicare and only for a select list of professionals that does not include physical therapists. This would empower individual beneficiaries by expanding their choices at no additional cost to the Medicare program. Both bills are sponsored exclusively by Republicans; at press time H.R.1650 has 29 cosponsors and S.1849 has four.

Achieve legislation that allows physical therapists in private practice to utilize locum tenens.
This Congress the bipartisan Prevent Interruptions to Physical Therapy Act (H.R.556/S.313) was reintroduced in the House by Representatives Gus Bilirakis (R-FL) and Ben Ray Luján (D-NM) and by Senators Chuck Grassley (R-IA) and Bob Casey (D-PA) in the Senate. PPS lobbyists and members have connected with legislators and shared examples of interrupted Medicare beneficiary care and related challenges faced by private practice physical therapists. These efforts have been effective in attracting considerable support to date. As of November 18, 28 senators have cosponsored the bill and there are 80 cosponsors in the House.

The legislation would add PTs in private practice to the list of health professionals currently authorized by Medicare to enter into locum tenens arrangements with other qualified therapists on a temporary basis in cases such as illness, pregnancy, jury duty, or other short-term absence.

In June the Senate Finance Committee passed a modified version of the bill that would expand the locum tenens provision only to physical therapists working in rural, medically underserved, or health professional shortage areas. This was because the Congressional Budget Office (CBO)—the nonpartisan government entity that determines the cost associated with proposed legislation—had estimated that the nationwide application of the policy would have an impact on the budget. Following this less-than-optimal result, PPS lobbyists worked with Senator Grassley’s staff to challenge the premise CBO used to achieve its cost estimate. We asked the Centers for Medicare & Medicaid Services (CMS) for data and to weigh in on CBO’s assumptions. CMS responded by issuing a letter stating that the Agency “does not have evidence indicating that locum tenens as used by physicians under current law has led to a general increase in utilization of services or that industry practices generally lead to the provision of unnecessary services relating to the use of locum tenens, or that the use of locum tenens under current law in the Medicare program is generally inappropriate, wasteful, or fraudulent.”

In October, the House Energy and Commerce Health Subcommittee convened a hearing on this technical correction. PPS Board member Sandra Norby testified before the panel as to the necessity and the value of locum tenens to private practice physical therapists and their Medicare patients, and her testimony and responses to questions were widely received by the committee members.

As H.R. 556 and its Senate companion bill (S. 313) have both been heard favorably in committee, the next effort will be to get the provision included in a larger piece of relevant legislation (known as a “vehicle”). A measure this small rarely makes it to the floor of either chamber or the president’s desk on its own.

Address and mitigate the negative effects associated with physician self-referral.
The legislative environment of the 114th Congress has not been conducive to addressing this issue. Both chambers are controlled by the Republican party whose members generally oppose restrictions on the practice of physician self-referral. In fact, there are groups of physicians in both the Senate and the House who have openly expressed their resistance. Consequently, no relevant bill has been introduced this Congress.

Encourage and achieve a streamlined, responsive, and transparent process for manual medical review of Medicare records by Medicare administrative contractors.
While Medicare Access and Children’s Health Insurance Program (CHIP) Reauthorization Act of 2015 MACRA² did not repeal the therapy cap, it did extend the therapy cap exceptions process through December 31, 2017, and attempted to streamline and reduce the administrative burden associated with manual medical review. Claims exceeding the therapy thresholds are no longer automatically subject to a manual medical review process; instead CMS is permitted to do a more targeted medical review that includes targeting those therapy providers with a high claims denial rate for therapy services or with aberrant billing practices compared to their peers. Moreover, PPS addressed the issue in its comments submitted on CMS’s proposed rule for the 2016 Medicare Physician Fee Schedule.

Promote the adoption by Accountable Care Organizations (ACOs) of quality measures that include functional health status.
Throughout the year, PPS lobbyists publicized difficulties private practitioners have encountered as a result of the growing presence of ACOs. In addition to raising these concerns in our lobbying efforts on Capitol Hill, strategies for dealing with ACOs were also highlighted in “Advocacy in Action” columns in Impact magazine.

Monitor and respond to ICD-10 implementation in a timely fashion with minimal disruption. PPS was represented on Capitol Hill in several discussions that focused on the prospects of delaying ICD-10 implementation. Additionally, ICD-10 implementation was the subject of a timely “Advocacy in Action” column in September 2015 Impact magazine.

Achieve legislation that allows reimbursement through Medicare and Federal Health plans for physical therapy care through telehealth. The Private Practice Section has endorsed the bipartisan Furthering Access to Stroke Telemedicine (FAST) Act of 2015 (H.R.2799/S.1465), which was introduced by Representatives Morgan Griffith (R-VA) and Joyce Beatty (D-OH), and Senator Mark Kirk (R-IL), respectively. Current law does not allow for Medicare reimbursement of telestroke services when the patient originates in an urban or suburban area—where approximately 94 percent of all strokes occur. Under this provision, Medicare would reimburse for the telestroke consultation regardless of the location of the hospital where the patient presents with stroke symptoms. Additionally, the existing originating site facility fee would not apply. The bipartisan H.R.2799 is gaining support quickly, and as of November 18 had garnered 39 cosponsors. The Senate bill still has only one cosponsor, but more activity is anticipated. PPS is among a broad coalition including cardiac and neurology groups who have endorsed this legislation. We are also pursuing opportunities to expand Medicare reimbursement for telehealth to physical therapy.

Continue to fight for fair and equitable Medicare reimbursement for physical therapists in private practice in part by eliminating or mitigating the effects of unsupported multiple procedure payment reduction (MPPR). Congress enacted legislation that used the MPPR measure to pay for a short-term extension of the SGR physician payment formula in 2013. Since that time, the committees with jurisdiction over Medicare issues have repeatedly refused to revisit the provision. Consequently, it is highly unlikely that the cuts we experienced due to MPPR will ever be restored. The most viable options for returning to a fair method of payment for physical therapy will be through changes to the Current Procedural Terminology (CPT) coding system, the adoption of an alternative payment method, or by sufficient enhancements to the incentive programs associated with the Medicare fee schedule.

Monitor, respond to, and participate in tax reform efforts to benefit physical therapists in private practice. PPS has endorsed H.R.2712, the Commonsense Reporting and Verification Act (H.R.2712), introduced by Reps. Diane Black (R-TN) and Mike Thompson (D-CA), and the Commonsense Reporting Act (S.1996) introduced by Senators Mark Warner (D-VA) and Rob Portman (R-OH). These bipartisan bills would simplify the Affordable Care Act’s (ACA) reporting requirements affecting employers and insurers. Under these bills, employers can use a voluntary reporting system to provide some data upfront to verify that a plan meets the employer mandate. Backend reporting would only be required for employees who utilize tax credits or cost-sharing subsidies for Exchange (Marketplace) coverage rather than for all workers. The goal of this legislation is to streamline the employer reporting process and strengthen the eligibility-verification process for the health care premium tax credit and cost-sharing subsidy while reducing both employer and employee frustration with the process. These bills are gaining momentum. As of press time, the legislation has five cosponsors in each chamber. PPS is joined by an alliance of employer stakeholders who are also supporting these measures.

Promote policy that increases opportunities for veterans to receive outpatient services provided by physical therapists in private practice. In 2014, Congress passed the Veteran’s Access, Choice, and Accountability Act³, which includes a provision that allows veterans to receive care from a non–Veterans Administration provider in their community under certain circumstances. In June of 2015, another bill was passed to further improve the law.⁴ PPS lobbyists have been monitoring the implementation of these laws to identify where regulatory engagement or additional legislation is needed to increase the opportunities for physical therapists in private practice to contract to provide care to veterans.

Regulatory

Pursue improvements in the Physician Quality Reporting System (PQRS) that would result in appropriate participation and recognition of the value of physical therapy.
PPS has suggested improvements to the PQRS in its communications with Congress and CMS. Additionally, in September, PPS submitted comment letters to CMS on two proposed rules: the Medicare Physician Fee Schedule (CMS-1631-P) and a bundled payment initiative known as the Comprehensive Care for Joint Replacement Model (CMS-5516-P). In November PPS responded to CMS’s request for information regarding the new Merit-Based Incentive Payment System (CMS-3321-NC). These letters can be found on the PPS web site www.ppsapta.org.

2016 Medicare Physician Fee Schedule (MPFS) (CMS-1631)
PPS submitted comments to the Centers for Medicare and Medicaid Services (CMS) on its 2016 MPFS Proposed Rule. CMS revised payment policies, updated quality provisions, and has established 2016 payment rates for Medicare-billed services that take place in hospital and ambulatory surgery center settings. During the comment period, PPS shared views and comments with CMS on six topics relevant to our membership. The Final Rule for the 2016 MPFS⁵ was published on November 16 and will become effective January 1, 2016, for services furnished during that calendar year.

Comprehensive Care for Joint Replacement Model (CMS-5516)
CMS proposed an initiative to support better and more efficient care for beneficiaries undergoing hip and knee replacements (also called lower extremity joint replacements or LEJR). This model, called the Comprehensive Care for Joint Replacement (CCJR) model, would test bundled payment and quality measurement for an episode-of-care associated with hip and knee replacements to encourage hospitals, physicians, and postacute care providers to work together to improve the quality and coordination of care from the initial hospitalization through recovery. Hip and knee replacements are the most common inpatient surgery for Medicare beneficiaries and can require lengthy recovery and rehabilitation periods. In 2013, there were more than 400,000 inpatient primary procedures costing more than $7 billion for hospitalization alone, yet the quality and cost of care for these hip and knee replacement surgeries still varies greatly. In September 2015, PPS filed views and comments with CMS on topics most relevant to the practice of physical therapy in a private practice setting. The final rule was published on November 18, 2015, and the program will be initiated on April 1, 2016.

Centers for Medicare & Medicaid Services Request for Information Regarding Implementation of the Merit- Based Incentive Payment System (CMS–3321–NC)⁶
The Medicare Access and CHIP Reauthorization Act of 2015 (MACRA) repealed the SGR formula, which had been used to determine updates to Medicare physician fee schedule (PFS) payment rates. MACRA provides for modest (0.5 percent) annual increases in the base fee-for-service (FFS) payments for the next five years. The law also creates the Merit-Based Incentive Payment System (MIPS), which will replace the Physician Quality Reporting System and other quality metrics. Physical therapists will be included in MIPS no earlier than 2021. Additionally, MACRA establishes financial incentives to those eligible professionals (EPs) who participate in Alternative Payment Models (APMs) or who otherwise demonstrate compliance with established quality measures and clinical practice improvement activities. In November, the Secretary of Health and Human Services solicited public comment on an extensive request for information that will set the stage for rulemaking to define the parameters and details of the MIPS program. PPS submitted a lengthy and detailed comment letter that pointed out the numerous provisions necessary to ensure timely and appropriate applicability of the MIPS to PTs in private practice. This comment letter can be found on the PPS website.

PPS Key Contact Program

The Board’s adopted goals are associated with strengthening PPS’ grassroots legislative effectiveness, in part by growing and strengthening the Section’s federal Key Contact program.
Established in 2013, the Key Contact Program has expanded rapidly. The first goal is to have a Key Contact for every Member of Congress in leadership or serving on a committee with jurisdiction over issues that affect private practice physical therapists. These include the Finance and the Health Education Labor and Pensions (HELP) Committees in the Senate, along with the Ways and Means and Energy and Commerce Committees on the other side of the Capitol. Once that benchmark has been met, we will turn our focus toward recruiting for those Members on committees that deal with small business, veterans, workforce, and aging issues. Ultimately, we aspire to have a PPS member assigned to every member of the House and Senate.

We had our first official Key Contact Advocacy Conference in September 2014, and a second in February 2015. Both of these Washington, D.C., based events involved training and preparation of our PPS Key Contacts who then went to Capitol Hill to successfully lobby on our issues. PPS members also joined in the American Physical Therapy Association’s (APTA’s) Hill day in June 2015 to follow up on messages they had previously delivered. Members of Congress responded after each fly-in by cosponsoring legislation that our members asked them to support.

After adding 27 new Key Contacts at the Annual Conference in Orlando, we have 170 PPS members matched with a Member of Congress. Key Contacts have been assigned to 72 percent of Members of Congress in House or Senate Leadership positions. All but three of the Senate Finance and HELP Committees have a Key Contact, and almost 70 percent of the top priority Representatives have a Key Contact. While that is a good start, we are working hard to recruit additional volunteers. Grassroots engagement is the lifeblood of the PPS advocacy program and the Key Contacts are the heart. If you are interested in becoming a Key Contact please contact Cristina Faucheux, the incoming Key Contact Task Force Chair.

Throughout the year, some legislative priorities are thrust into the spotlight. To seize this opportunity, we send targeted Action Alerts that contain context, background, talking points, and contact information to PPS members and/or Key Contacts urging and enabling them to engage in informative outreach to their target legislator. This outreach has been duly noted by Members of Congress and their legislative staff—making lawmakers more aware of how an issue impacts PTs in private practice.

For example, this past March and April 2015, we reached out to PPS members and Key Contacts requesting them to email or call their legislators and ask for them to finally repeal SGR. Key Contacts also asked them to include the therapy cap repeal in that must-pass legislation. In June when it was clear that the Senate was going to mark-up the locum tenens bill in the Finance Committee, we sent out an Action Alert to the Key Contacts of members of that committee. The Senators heard from physical therapists and passed the bill, as amended, out of Finance on a voice vote. As noted previously, the bill is now ready to be voted on by the full Senate.

As recently as September 2015, we sent an Action Alert to those Key Contacts whose assigned Members of Congress were on the House Energy and Commerce Committee because the locum tenens bill was to be discussed in the Health Subcommittee hearing. The Key Contact response was remarkable as many Members who attended the hearing mentioned their experience with, or support for, physical therapy. Still others quoted PTs from their district whose practices were impacted and patient care was interrupted because they were not able to use locum tenens on a short-term basis to provide a qualified therapist when the clinic could not be sufficiently staffed to serve its Medicare patients. These are perfect examples of effective grassroots advocacy.

2016

As we begin the second session of the 114th Congress, PPS legislative priorities will remain intact and our lobbying efforts will build on the progress of this past year. Legislating in the year of a presidential election becomes more difficult but we will continue to work both sides of the Capitol and look for opportunities to advance our legislative agenda. However, we will also have to apply our attention and resources to the numerous regulatory proposals that are increasingly coming our way. On both fronts, PPS grassroots engagement is critical to our efforts.

References

1. www.gpo.gov/fdsys/pkg/BILLS-114hr2enr/pdf/BILLS-114hr2enr.pdf. Accessed November 2015.

2. www.gpo.gov/fdsys/pkg/BILLS-114hr2enr/pdf/BILLS-114hr2enr.pdf.

3. Public Law 113-146 signed into law on August 7, 2014.

4. On July 31, 2015, the President signed Public Law 114-41, the Surface Transportation and Veterans Health Care Choice Improvement Act of 2015. Title IV, the VA Budget and Choice Improvement Act made several changes to the Veterans Choice Program.

5. www.gpo.gov/fdsys/pkg/FR-2015-11-16/pdf/2015-28005.pdf.

6. www.gpo.gov/fdsys/pkg/FR-2015-10-01/pdf/2015-24906.pdf.

Alpha Lillstrom 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.