Advocacy in Action
By Alpha Lillstrom Cheng, JD, MA
PURSUING PHYSICAL THERAPIST ASSISTANT POLICY CHANGES
Physical therapist assistants provide services that add significant value to the practices they work in and the communities they serve. Yet at the same time, a payment differential is now in effect for the care they provide. Additionally, services provided to Medicare beneficiaries by therapist assistants in outpatient therapy settings are burdened by an unequal supervision standard.
THERAPIST ASSISTANT PAYMENT DIFFERENTIAL
PPS and other stakeholders have worked many angles (access at https://bit.ly/37slsux) to try to delay the implementation of the therapist assistant payment differential. Advocacy efforts also included requesting an exemption for physical therapist assistants (PTA) or occupational therapy assistants (OTA) working in small practices of 15 or fewer eligible clinicians, as well as urging the Center for Medicare and Medicaid Services (CMS) to provide targeted geographic relief from the policy. Despite these significant efforts, the Bipartisan Budget Act of 2018’s required 15% Medicare payment differential for care provided in-whole or in-part by a PTA or OTA was implemented on January 1, 2022. CMS regulations have defined “in whole or in part” to be situations when more than 10% of the therapy service is furnished by the PTA or OTA (also referred to as a “de minimis” standard). The 15% payment differential is subtracted from reimbursement after the Medicare beneficiary’s 20% coinsurance is calculated.
THERAPIST ASSISTANT SUPERVISION STANDARD
Therapist assistants must provide care under the direction and supervision of physical therapists. The level and frequency of PTA supervision differs by setting in Medicare and is also impacted by state-based policies; if state practice requirements are more stringent than Medicare’s requirements, the physical therapist and PTA must comply with their state practice act.
CMS currently applies a general supervision standard to skilled nursing facilities, in-patient rehabilitation facilities, comprehensive outpatient rehabilitation facilities, and rehabilitation agencies. In these settings, the supervising physical therapist only needs to be available by phone. However, Medicare has singled out outpatient clinical settings for direct supervision—requiring the supervising therapist be in the same physical location as the PTA. In contrast, 44 states have a general supervision standard for physical therapist assistants regardless of the clinical setting.1
Medicare’s heightened supervision standard impedes timely access to outpatient care. As you know, a therapist may only provide care to Medicare beneficiaries (or supervise a therapy assistant) during their hours worked. In the course of our advocacy, we remind policy makers that this means that the on-site schedules of PTAs and their supervising therapists must be perfectly aligned because if the supervising therapist is unavailable or unable to provide direct supervision to the therapist assistant, the patient will be unable to receive medically necessary care at that time.
ARGUMENTS IN SUPPORT OF POLICY CHANGE
Impact of standardizing general supervision across all settings
Modifying the supervision requirement for private practice settings would better align with all other therapy settings and create consistency with most existing state and federal laws. Furthermore, standardizing the Medicare supervision policy would have an immediate impact in 44 states, because at this time the only obstacle to using general supervision in all of those states’ practice settings is Medicare’s direct supervision requirement.2 Additionally, making the supervision requirement consistent across outpatient settings will decrease administrative burden and ease compliance for providers who work and manage staff in more than one type of setting.
We make sure that policy makers understand that should Medicare agree to modifying the supervision requirements in outpatient settings, it will not present a risk to patients because under general supervision, the qualifications of the PTA or OTA who performs the interventions will still be the responsibility of the supervising physical or occupational therapist.
Currently participating in equivalent of a “pilot program” for general supervision
As a result of the Public Health Emergency (PHE)1-related flexibilities granted by Congress, CMS clarified in the 2022 Medicare Physician Fee Schedule (MPFS) that supervisors of PTAs and OTAs are able to “meet the immediate availability requirement for direct supervision through the use of real-time, audio/video technology” and do so “when use of such technology is indicated to reduce exposure risks for the beneficiary or health care provider.” This policy is in place until the end of the year in which the PHE ends.3 As a result, therapist assistants have been able to provide safe, effective, and necessary care to the fullest extent of their training without a therapist needing to be in the same physical location. This temporary policy has also increased patient access in most parts of the country, improved the efficiency of care, and suspended a long-standing administrative burden for private practice clinics.
This flexibility has provided therapists in outpatient settings an approximation of general supervision. However, in rural areas where broadband or cellular infrastructure is lacking, it is not always possible to use both the audio and the visual components of telecommunication. This means that through no fault of their own, patients in rural areas experience additional barriers to care when compared to their suburban or urban counterparts who have better access to the infrastructure necessary to utilize combined audio and visual technologies.
Building upon this experience, we are asking policy makers for permanent policy changes that are informed by the de facto pilot program, which has verified the success and value of private practice therapists achieving general supervision of therapist assistants through virtual means. At the same time, we point out that should the flexibility expire before a permanent fix is provided, we would return to a situation where the practice is severely limited and patient care is restricted when the supervising physical therapist is ill or unable to be in the clinic.
We share these examples and explanations with policy makers as we strive for relief for PPS members via both legislative and regulatory channels.
A legislative solution is often the preferred method through which to improve federal policy because statutory changes are not subject to the whims of a new Administration. PPS worked with APTA and other rehabilitation stakeholders to draft legislation that would both provide relief from the therapist assistant payment differential and establish a universal general supervision standard for Medicare. This collaboration resulted in the introduction of the bipartisan Stabilizing Medicare Access to Rehabilitation and Therapy (SMART) Act (H.R.5536), which seeks to suspend the payment differential until the end of 2022 and exempt those therapist assistants who are working in rural and medically underserved areas. The SMART Act would also remove Medicare’s direct supervision requirement and allow state law to determine the supervision requirements of therapist assistants working in outpatient settings. This bipartisan bill has been endorsed (access at https://bit.ly/3v3GCbl) by 17 rehabilitation therapy provider and patient groups, including PPS and APTA. As of this writing there is only a bill in the House, but a Senate bill is in the works.
The need for a more flexible, permanent policy is now — providers who are also small business owners need to be able to plan ahead in order to meet the needs of their patients. PPS and other rehabilitation therapy stakeholders have repeatedly asked Congressional leadership to include the SMART Act in larger legislative packages such as the Continuing Resolution (access at https://bit.ly/36zx91P) and the Omnibus federal spending packages earlier this year. While we were disappointed that the SMART Act was not included in those bills, we continue to press lawmakers to cosponsor and pass the bill before the end of 2022.
In the 2022 Medicare Physician Fee Schedule (MPFS) final rule, CMS confirmed that it has the authority to change the supervision standard but ignored the request from PPS stating that it was not possible to make a change because the issue of supervision was not proposed by the Agency for comment. In comments regarding the 2022 MPFS, PPS also suggested that at the very least, the Agency could permanently allow using A/V communications to achieve direct supervision. CMS declined to make a decision about virtual supervision last year, arguing that it was not an urgent issue because the PHE waiver permits it to continue until December 31, 2022.
CONVERSATIONS WITH REGULATORS
This January, PPS, along with APTA and other rehabilitation therapy provider groups, applied to the Department of Health and Human Services (HHS) for a PHE-related 1135 waiver that would put the PTA/OTA differential on hold until the end of the year in which the PHE ends. Unfortunately, our waiver request was denied on grounds that while the PHE 1135 waiver authority allows for CMS to provide flexibility in coverage of care, it does not empower the Agency to make changes to payment policy.
We parlayed the denial of the waiver application into an opportunity for a virtual meeting with the CMS staff who are responsible for rehabilitation payment and coverage policy. This February meeting focused on things it is clear that the Agency has the authority to implement: flexibility to increase payment in rural areas and changing Medicare’s supervision standard from direct to general.
A month later, the same coalition of rehabilitation therapy groups met with a representative of the Secretary of HHS. In that meeting we reiterated our ask for both a rural payment adjustment to mitigate the 15 percent PTA payment differential and direct supervision. Following each meeting, we shared documentation of the Agency’s regulatory authority to both provide a geographic-linked payment adjustment for services furnished by therapist assistants and to establish a uniform general supervision standard for all care provided to Medicare beneficiaries by a PTA or OTA — regardless of setting type.
REQUESTING REGULATORY RELIEF IN THE MEDICARE PHYSICIAN FEE SCHEDULE
Each year CMS is tasked with using the MPFS proposed rule to suggest policy changes and set reimbursement rates for services provided to Medicare beneficiaries. We have formally requested that CMS reflect upon the robust information and impact rationale we have provided and include the following regulatory changes in the 2023 MPFS proposed rule to be released this July:
- Update Medicare’s supervision policy for outpatient rehabilitation therapy settings such that supervision of PTAs and OTAs can be achieved through general supervision. Finalizing an update to allow for general supervision of PTAs and OTAs in November 2022 before the PHE-linked waiver expiration date in December 2022 would enable outpatient therapy providers to continue to provide supervision through remote communications. This seamless transition would protect against interruption in patient care.
- While the PHE-related flexibility allows CMS’s direct supervision requirement to be met using audio/visual means, it is not a long-term solution. In rural areas where broadband or cellular infrastructure is lacking, supervising therapists are sometimes unable to use both the audio and visual components of telecommunication. This means that through no fault of their own, patients in rural areas experience additional barriers to care when compared to their suburban or urban counterparts who have better access to the infrastructure necessary to utilize combined audio and visual technologies. Audio-only communications should be sufficient to meet PTA and OTA supervision requirements — the most effective way to address this concern would be for Medicare to adopt a general supervision standard for all PTAs and OTAs.
- Mitigate the harm to rural patients and communities that has been caused by the therapist assistant payment reduction by either creating a class-specific geographic index for physical therapy services furnished by therapist assistants to offset the PTA/OTA payment reduction in rural areas or establish incentive payments for relative value unit (RVU) data collected from rural physical therapists to offset the PTA payment reduction in those areas.
There are two routes to changing federal policies: regulatory changes or adjustments to the statute through legislation. Your engagement can help with both. First, if you haven’t already, use the template email found in the Advocacy Blog (access at https://bit.ly/389NQRM) on PPS’ website to reach out to your lawmaker and ask for them to cosponsor the SMART Act. Make sure to include an example of how changing the supervision standard or providing relief to the PTA differential will impact your practice and your patients’ access to care.
Second, keep an eye on the PPS Advocacy Blog and social media accounts this August and September so that you will know when the time is ripe to write to CMS with your input on what it has included in the Medicare Physician Fee Schedule proposed rule. In years past, physical therapists have been among the top of provider types who have submitted comments to CMS on policies it has proposed — let’s keep up the trend!
1In the remaining six states, supervision level differs by settings; the District of Columbia requires onsite supervision; and in both Puerto Rico and the USVI, the supervision level is undetermined.
2Federation of State Boards of Physical Therapy Jurisdiction Licensure Reference Guide https://www.fsbpt.net/lrg/Home/SupervisionRequirementLevelsBySetting. Occupational therapists are granted general supervision by 49 states.
3Should the PHE expire at any time in 2022, the ability to use A/V means to achieve direct supervision would expire on December 31, 2022.
Alpha Lillstrom Cheng, JD, MA, is a registered federal lobbyist and the President of the firm Lillstrom Cheng Strategies which has been retained by PPS. An attorney by training, she provides guidance to member organizations, companies, non-profit organizations, and political campaigns. 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 accountability, election law, privacy, and government transparency