Advocacy Priorities Primer

By Alpha Lillstrom Cheng, JD, MA

The beginning of the 117th Congress has been unlike any other.

The House and Senate office buildings have been closed to the public since March 2020 and most staff are working from home. While at first this might seem limiting, it has actually resulted in more options for methods of advocacy and engagement. Instead of waiting for a fly-in, lawmakers and staff can attend meetings that span great distances and include participants who would otherwise not be able to join in the conversation due to restraints of time and other resources. While you might be more familiar with face-to-face encounters with both patients and your lawmakers, this past year has shown that we are adaptable and that videoconferencing can reduce barriers and provide the opportunity to open minds.

LEGISLATIVE AND REGULATORY ADVOCACY PRIORITIES FOR THE 117TH CONGRESS

With Joe Biden as president, there is single-party control of both the legislative and executive branches of our government. The legislative agenda will be controlled by Democrats in both the House and Senate but the filibuster rule in the Senate—which requires at least 60 votes to pass most legislation—will prevent Democrats from being able to pass legislation without achieving Republican support. Similar to other times when one party has controlled both chambers of Congress by slim majorities, Democrats are planning to use reconciliation—a rule which allows for legislation which directly impacts federal spending to pass with a simple majority vote—to advance some significant policy initiatives without Republican assistance. It is possible that Medicare payment policies could be included in a reconciliation package because they have a direct impact on federal spending, while coverage policies cannot be as they have a tangential fiscal impact. At the same time, some of the health coverage and small business principles supported by PPS have a chance for advancement in either the legislative or regulatory arena because President Biden has been very vocal about his support for access to health care and the Affordable Care Act (ACA) as well as a strong desire to restore the economic viability of small businesses while combating the pandemic.

In early December, members of the PPS Board of Directors and the Government Affairs Committee (GAC) met to develop the advocacy priorities for the 117th Congress. In deciding which issues your lobbyist and grassroots advocacy efforts should focus on, the Board and GAC took into consideration the needs and interests of the Section’s members and the changing landscape of health care policy while also evaluating political make-up and priorities of the members of 117th Congress, the new President, and his administration. The phrases in bold represent the legislative and regulatory advocacy priorities determined by the Board and the GAC to be most pressing for the 117th Congress.

LEGISLATIVE

Medicare Issues

Since the fall 2019, PPS and its members have been part of a broad stakeholder effort aimed at preventing CMS’s planned drastic cuts to Medicare reimbursement (-9% for physical therapy). As a result of unrelenting stakeholder pressure, during the final days of the 116th Congress, lawmakers included in the bipartisan Consolidated Appropriations Act, 2021 a one-time policy that decreased the payment cuts to providers across the health care delivery system. This successful effort reduced that drastic cut from -9% to -3.6% for physical therapy, effective January 1, 2021.

Unfortunately, there are additional cuts to providers reimbursed under the Medicare Physician Fee Schedule scheduled for 2022, 2023 and 2024. Additional work and advocacy is necessary to resolve these and other deficiencies in Medicare payment policies. Therefore, the Board has decided that the highest priority for the Section is permanently mitigating Medicare payment policies that undermine the importance and value of physical therapist and physical therapist assistant care as well as its impact on patients and their communities.

Efforts on this issue have begun. The Section remains highly engaged with a coalition of healthcare providers who are impacted by the planned fee schedule cuts. In late February, PPS and 74 other stakeholder organizations sent letters to Representatives and Senators thanking them for their previous efforts but making it clear that we will continue to press for legislative solutions to modify Medicare payment policies in ways that reflect the importance and value of the care that members of the Section provide.

Concerned about the downward trend of payment, Section leadership identified additional areas of federal policy that could be modified to reduce the time providers spend on things that are not compensated for. As such, a top priority for the Section is to eliminate administrative barriers to enable Medicare beneficiaries to optimize access to physical therapists for treatment. One example would be to remove the plan of care signature requirement. As you know, compliance with the requirement for a physician signature on therapist-developed plan of care imposes a significant logistical and administrative burden for both therapy providers and physicians, taking valuable time and resources away from delivering patient care—a burden that has been magnified during the public health crisis. Furthermore, the plan of care signature requirement is at odds with contemporary physical therapist practice. State laws have already sanctioned “direct access” to various degrees and have recognized physical therapists as highly educated health care professionals who can provide evaluation and treatment services within their respective disciplines without the need for an order or referral from any other health care professional. Building off this momentum, the Section will pursue [federal] policy changes that enable Medicare beneficiaries to access physical therapist care directly. Achieving these types of reforms on the federal level would reduce administrative burden thereby saving physical therapists both time and resources.

The Section will remain focused on efforts to influence payment reform proposals and continue to fight for fair and equitable payment for physical therapists and physical therapist assistants in private practice across the healthcare continuum. This will manifest itself in a number of ways. In addition to working to permanently mitigate CMS cuts to pay for an increase in E&M codes that was mentioned above, we will be encouraging Congress to make other changes to improve payment policies. One example is our interest in delaying the return of the 2% Medicare sequester. In response to the COVID-19 pandemic, lawmakers passed the CARES Act, which paused the Medicare sequestration reduction between May 1 and December 31, 2020. Congress again delayed reinstating the Medicare sequester through April 1, 2021, as part of the Consolidated Appropriations Act, 2021. PPS strongly supported the Medicare Sequester COVID Moratorium Act (H.R.315) which sought to hold off the Medicare sequester for the duration of the Public Health Emergency (PHE). PPS and other coalition partners sent a letter to Congress spelling out why this extension should be granted On April 14, 2021 the moratorium of the -2% Medicare sequestration was extended through December 31, 2021 (which is also the likely expiration date of the PHE).

In 2016, our efforts and grassroots engagement resulted in a change in law which allowed private physical therapists practicing in rural, medically underserved, and health professional shortage areas to utilize the locum tenens (also known as substitute billing privileges) provision to arrange for a qualified substitute physical therapist to treat and bill for care provided to their Medicare enrolled patients. While this significant victory began to address the needs of PPS members and their patients, the reality is the need for a locum tenens therapist hinges more on the size of the practice than its location. Therefore, the Board has directed us to continue to pursue the expansion of the locum tenens provision of Medicare to include physical therapists practicing in all communities. The Prevent Interruptions in Physical Therapy Act (H.R.1611) has been introduced; efforts are underway to introduce a Senate companion bill so that we can more effectively work towards the goal of achieving this important policy change.

PPS remains interested in legislation that allows physical therapists in private practice to privately contract with Medicare patients. For many years, legislation has been introduced to make this possible. The Medicare Patient Empowerment Act (S.826) has been introduced in the Senate; we are working on the introduction of a House companion bill. As this policy has long been supported by members of the Republican conference, it is unlikely to be achieved during the 117th Congress since both chambers of the legislative branch are controlled by Democrats who perceive this policy as risking erosion of the Medicare program.

Fundamentally, PPS would like federal policy to support transparency, patient access, quality of care, and patient choice of both providers and settings for Medicare and Medicare Advantage beneficiaries. Therefore, we will work to remove the plan of care requirement, remove physical therapists from the in-office ancillary services exception, allow for general supervision of physical therapist assistants in private practice settings, and address and mitigate negative effects associated with any healthcare arrangement where business and financial interests could be prioritized over patient-centered care.

Technology and Telehealth

As a result of the pandemic, the utilization of telehealth has soared in some practices and the interest in this mode of providing healthcare has increased significantly. Furthermore, for the duration of the PHE4 physical therapists and physical therapist assistants in private practice will continue to be paid for providing care via telehealth due to the temporary PHE-related Medicare regulatory waivers. Members of Congress now have the proof-of-concept they often request.

Providers and CMS alike have data to show that using telehealth increases access and enables effective care. Outside of the PHE waivers provided by the CARES Act, CMS does not have regulatory authority to reimburse physical therapists for telehealth. Therefore, in order for physical therapists and private practice clinics to be permanently eligible for reimbursement for services provided via telehealth, it is necessary to change the law. Making the most of the growing Congressional interest, we will pursue legislation to include physical therapists and physical therapist assistants among those non-physician providers who are authorized to be paid for providing care to Medicare beneficiaries using telehealth; we have helped craft legislation to achieve this goal. To that end, our current legislative focus is the PPS-endorsed bipartisan Expanded Telehealth Access Act (H.R.2168) which seeks to change the statute to permanently add physical therapists, physical therapist assistants, and other rehabilitation therapists to the list of providers that Medicare pays for care provided via telehealth.⁵

As we seek permanent coverage for telehealth, we will be also be promoting the use of a hybrid model such that physical therapist services may be provided in person and via telehealth while ensuring that payment for physical therapist services provided via telehealth require that an in-person physical therapy visit is available to all patients. Our goals include achieving legislation to provide parity for both coverage and payment for telehealth services as well as the utilization of electronic health records and the use of technological innovations in healthcare. Our final priority within the telehealth sphere is to pursue policy that requires that physical therapy that is provided “incident to” must be provided by a licensed physical therapist.

Health Care Coverage Principles

The constitutionality of the individual mandate portion of the ACA will be decided by the U.S. Supreme Court this June. Recognizing this, the Section has laid out some health coverage principles to guide advocacy efforts in this arena. Building off current ACA requirements, the Section will continue to promote physical therapy as an essential health benefit (EHB) in all insurance plans and advocate to retain guaranteed access to insurance for those with pre-existing conditions as well as the ban on rescission for those who do have coverage. At the same time, the Section will support policies that empower patients to access medically necessary physical therapist services from the providers of their choice by addressing and mitigating the negative effects of market control on physical therapists in private practice and their patients, including opposing networks and policies that unreasonably limit patient access and choice. In order to achieve this goal, we will pursue elimination of arbitrary limits to access and obstruction for payment for services and support consumer opportunities and choice by increasing transparency of coverage across all payers and healthcare provider pricing.

Population Health

The Section decided to use its Legislative and Advocacy Priorities document to clearly state the role and impact physical therapists have on population health. To reinforce that, we will seek opportunities to position the physical therapist as a primary care provider for neuromusculoskeletal dysfunction and promote the physical therapy profession as a point of entry into the medical model for movement disorders. Simultaneously we will promote recognition of physical therapists as essential health care workers who provide preventative and wellness services as well as manage chronic disease by advocating to remove the plan of care requirement and pursuing federal direct access. We will also do so by supporting policies that empower physical therapists to evaluate and support healthy and independent lifestyles and to promote mobility throughout the lifespan. Finally, we will pursue legislation to require physical therapist services to be a covered service under Medicaid.

Small Business Issues

This past year was particularly challenging for small businesses. It is crucial that we pursue legislation focused on small business issues such as equitable payment for physical therapist services provided in a private practice setting and policies which enable physical therapists to enter into private practice and sustain their small businesses while supporting the economic vitality of their community. This includes policies which address administrative simplification, student and small business loan programs, expanded access to Association Health Plans and group purchasing of health insurance, patient-focused efforts of access to care which enables a healthier community, and legislation which promotes small business ownership and access to small business loans for women and minorities as well as a mandate to monitor, respond to, and participate in tax policy updates, such as the Eliminating Provider Relief Fund Tax Penalties Act (H.R.2079), to support physical therapists in private practice.

Other Federal Issues

The Section will continue to promote policy that increases opportunities for Veterans and their dependents to receive direct access to outpatient services provided by physical therapists in private practice as well as support efforts to promote the inclusion of physical therapists and physical therapist assistants in the medical team providing care to address concussion management, chronic pain, and social determinants of health.

REGULATORY

President Biden chose former Congressman Xavier Becerra of California to lead the Department of Health and Human Services (HHS). When in Congress, Becerra was a member of the House Ways & Means Committee, was responsive to the value of physical therapy, and led legislation to repeal the therapy cap. As Attorney General of California, he led the coalition of Attorneys General from 17 states seeking to defend the ACA in the case which is currently with the Supreme Court. It is expected that he will focus the Agency’s efforts on addressing health disparities, as well as coverage for and access to preventive care. Regulatory changes proposed by HHS and the Centers for Medicare and Medicaid (CMS) will likely reflect his and President Biden’s strong history of championing the consumer protections and access to coverage the ACA was intended to achieve.

Chiquita Brooks-LaSure is serving as the Administrator of CMS. Her resume covers all the bases of federal health care policy: work on the ACA during her time on the House Ways and Means Committee staff; working on Medicare, Medicaid, and commercial insurance issues at both the White House budget office and CMS; and advising providers, insurers, life sciences companies, and states on a wide range of healthcare issues. Because of this diverse experience, it is anticipated that she will respond to both provider and patient interests when guiding regulatory policy.

The regulatory bodies of the government—including CMS—propose and implement administrative rules that impact physical therapy. Through public comment and other advocacy tools we will work to mitigate Medicare payment policies that undermine the importance and value of physical therapist and physical therapist assistant care as well as its impact on patients and their communities. Your Board included additional priorities that are relevant in the regulatory arena: continue to fight for fair and equitable Medicare reimbursement for physical therapists in private practice; the elimination of administrative barriers; pursue favorable Medicare standards for supervision of assistive personnel; promote physical therapy as an essential health benefit in all insurance plans; and promote recognition of physical therapists as essential health care workers who provide preventative and wellness services as well as manage chronic disease. You will notice that many of these are also legislative priorities. This simply means that we will advocate for members in both branches of government. 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.

CONCLUSION

Each new Congress provides lawmakers with a clean slate from which to build or revise their policy priorities. Stabilization of small businesses and access to healthcare are likely to be among the top tier priorities of both the legislative and executive branches of government in the coming years. While many ideas have been discussed, specifics will emerge as the year progresses. We will stay abreast of proposals to reform Medicare payment, coverage of telehealth services, health insurance regulations, as well as small business assistance and tax policies—all of which could impact the Section’s membership.

In what could continue to be a challenging political environment, we remain committed to build upon our bipartisan, bicameral efforts to identify and act on opportunities to advance the Section’s legislative and regulatory agenda. Throughout the 117th 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 117th Congress as our guide when working with Congress and the administration on behalf of the Section and its members.

The voice of the Section’s members as constituents, business owners, and providers is a valuable part of our advocacy efforts; we will call upon you as necessary, and strongly encourage you to be involved. If you haven’t already, please send a copy of PPS’ Legislative and Advocacy priorities to your lawmakers and asking for their support of the bills mentioned in this article. As a constituent who is also a business owner, it is important that they hear from you. Take this opportunity to remind them that achieving these priorities will enable you to not only keep your physical therapy clinics open—to serve your patients—but also empower you to grow your businesses so you can continue to provide good jobs for their constituents.

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.