Halfway Through the 117th Congress: Making Progress
By Alpha Lillstrom Cheng, JD, MA
The output of 117th Congress has been focused on landmark legislative agendas and significant yet temporary COVID-19 related policies, but also has been limited by an ever-deepening political divide.
Nevertheless, using the priorities laid out in PPS’ Legislative and Advocacy Priorities1 as our guide, we have made some progress on our goals.
Advocacy efforts in 2021 were two-pronged. First, we turned our attention to policies which would provide shorter-term financial stability for PPS members for the duration of the Public Health Emergency (PHE). With that in mind, we shepherded the introduction and passage of legislation to delay sequestration, to mitigate the drastic payment cut to physical therapist services instituted by the 2021 and 2022 Medicare Physician Fee Schedules, and to maximize the benefit of PHE-related financial support programs. Second, we worked on legislation which would permanently address priorities such as reducing administrative and supervision burdens, enable coverage for care provided via telehealth, expand access to locum tenens, to make some COVID-19 linked policies permanent, and so much more. Work on the permanent policy agenda is ongoing.
One of the early Congressional responses to the PHE was to put the 2% sequestration reduction on hold. In December 2020, this relief was extended to April 1, 2021. In early 2021 PPS-endorsed the bipartisan Medicare Sequester COVID Moratorium Act (H.R.315)2 which sought to provide relief from the sequester for the duration of the public health emergency (PHE).
Twice in the spring of 2021, PPS joined large coalitions to send letters3 to the leaders of the House and Senate asking4 for an extension of the sequester moratorium. PPS members were also encouraged to reach out to their lawmakers asking for relief. Our voices were heard. In April 2021 lawmakers extended the moratorium until December 31, 2021. Delaying the return of the sequester remained on our priority list for the rest of the year.
In the CY 2022 Medicare Physician Fee Schedule (PHS), the Centers for Medicare & Medicaid Services (CMS) slashed the conversion factor (CF) to $33.59. Just like in 2020, PPS sprang into action to fight the cut. The comprehensive advocacy strategy went beyond direct lobbying to include pairing up with other stakeholders as well as engaging PPS members to email or call their lawmakers to explain how a cut to Medicare reimbursement would result in serious financial challenges, difficulty keeping staff, and possibly impact patient access as well.
In July 2021, a letter5 signed by PPS and 108 other stakeholders asked Congressional leadership to again prevent the steep cuts. This was followed by a large-scale effort by all types of Medicare providers to drum up support for Congressional intervention. The coalition of providers secured the support of 247 Representatives who called6 on Congress to extend the increase in Medicare rates for CY2022. PPS engaged all of its members in this advocacy effort. For reference purposes, the similar letter in October 2020 got 229 signatures.
After months of hearing from you and a full range of Medicare providers, Congress finally acted. On December 10, 2021 the Protecting Medicare and American Farmers from Sequester Cuts Act was signed into law. This provided a 3% payment increase to the CF that the CMS set for CY2022. The return of the 2% sequestration was delayed until April 1, 2022. After that sequestration will be phased back in at 1% from April through June 30, 2022, then on July 1, 2022 the full 2% sequestration returns. Finally, the law waived the statutory pay-as-you-go (PAYGO) rules (which require Congress to offset the cost of each piece of legislation); without that waiver, Medicare spending would have been cut by 4%.
If Congress hadn’t stepped up, the CF cut alone would have been an average of 4.1% for physical therapists. Taking all of these changes into consideration and using a revised CF of $34.6062, the American Medical Association estimates that instead of a cumulative 9.9% cut, physical therapists will see an average of a 1.2% cut. The actual impact will vary depending on billing practices.
Impact of the PHE
The COVID-19 Public Health Emergency (PHE) remains in place through at least mid-April 2022. The decision to end the PHE will be determined months before it would need to be renewed again; the end date will not come as a surprise.
Independently practicing physical therapists and their therapy assistants are only able to provide care to Medicare beneficiaries via telehealth for the duration of the PHE. Under current law, after the PHE expires, physical therapists will only be able to provide therapy via telehealth if they are doing so “incident to” a physician’s service—and that flexibility only remains in place through the end of the year in which the PHE expires. However, it is important to note that for those of you who practice independently, that caveat is not likely to pertain to you.
However, physical therapists will be able to use virtual audio/visual (A/V) technologies to achieve direct supervision until the end of the calendar year in which the PHE ends. This means therapists will able to fulfill the direct supervision requirement by being available to their therapist assistant via a video call until at least the end of 2022.
SEEKING PERMANENT POLICY CHANGE
Throughout 2021, PPS and other stakeholders worked many angles to try to delay the implementation of the payment differential or provide targeted relief from the policy. PPS weighed in7 directly with CMS to suggest delaying the differential as well as exempting PTAs and OTAs working in small practices (of 15 or fewer eligible clinicians) and those providing care in rural and medically underserved areas from the payment reductions.
Stakeholders, including PPS, also formally requested that CMS lessen the therapist assistant supervision requirements, or at the very least permanently allow using A/V communications to achieve direct supervision. However, CMS ignored the request about changing the supervision standard and put off making a decision about A/V communications while pointing out because it is currently allowed under Public Health Emergency (PHE) waiver until December 31, 2022 it is not an urgent issue.
POTENTIAL LONG-TERM LEGISLATIVE SOLUTIONS
We are now in the Second Session of the 117th Congress; all legislation that was introduced last year is still viable and has the potential to become law.
As mentioned previously, Medicare will continue to pay rehabilitation therapists for providing care via telehealth for the duration of the PHE. But beyond the COVID-19 related waivers, CMS does not have the authority to reimburse physical therapists for telehealth. In order make Medicare payment for telehealth permanent, Congress must intervene. Multiple bills have been introduced that could achieve payment for physical therapists providing care to Medicare beneficiaries using telehealth, yet no single bill is the ideal.
The Expanded Telehealth Access Act8 is a narrowly tailored bill which would permanently add—in statute—physical therapists, physical therapist assistants, and other rehabilitation therapists to the list of distant site providers that Medicare pays for telehealth. Therefore, the inclusion of this bill in a telehealth package remains a top priority for PPS and other rehabilitation professionals.
The part of the broader Telehealth Modernization Act most relevant to PPS could achieve coverage parity for telehealth by enabling the HHS Secretary to permanently add physical therapists to the list of health care providers which Medicare would pay for providing services via telehealth. The Cures 2.0 Act goes beyond telehealth to cover a wide range of policies seeking to modernize healthcare delivery; a portion of Cures 2.0 is the language of the Telehealth Modernization Act, but since the bill does not ensure expansion of Medicare coverage to physical therapists, this language is not ideal.
The Telehealth Extension Act seeks to extend PHE-related telehealth waivers for an additional two years. The bill also removes the current originating site and geographic limitations from the statute—this would mean that all providers who are authorized to provide care via telehealth to Medicare beneficiaries could do so without the current site or location restrictions. However, until physical therapists are full-fledged telehealth providers under Medicare, the removal of site restrictions will not be relevant to private practice physical therapists.
While none of the more expansive bills include our preferred language, there is time to make the case that the eventual telehealth package should include the language of the Expanded Telehealth Access Act in order to unequivocally require Medicare to pay for telehealth care provided by private practice physical therapists.
Now that the therapist assistant differential has gone into effect, stakeholders are focusing on legislative efforts to pull that back. The PPS-endorsed Stabilizing Medicare Access to Rehabilitation and Therapy (SMART) Act9,10 seeks to delay the payment differential for a year while fully exempting those therapy assistants who provide care in rural and medically underserved areas. The SMART Act also seeks to allow state law to determine Medicare’s therapist assistant supervision standards. In 44 states this would mean a general supervision standard for PTAs and OTAs, regardless of setting type.
PPS and a coalition of rehabilitation providers are also trying another approach. In early January, we requested11 a PHE-related waiver from HHS to put the PTA/OTA differential on hold until the end of the year in which the PHE ends. Should it be granted, the duration of this delay would align with the waiver-based therapist supervision flexibility and give us more time to address both issues legislatively.
There is significant momentum and support for the Improving Seniors’ Timely Access to Care Act,12 which has been endorsed by over 450 organizations.13 This bill has the potential to reduce administrative burden and prior authorization delays when interacting with Medicare Advantage (MA) plans. Specifically, the bill would establish an electronic prior authorization (ePA) program, require MA plans to adopt ePA capabilities, and require HHS to establish a list of items and services eligible for real-time ePA decisions. Furthermore, the legislation would standardize and streamline the prior authorization process for routinely approved items and services as well as increase transparency around MA prior authorization requirements and their use.
Since 2017, physical therapists in outpatient clinics located in rural, health professional shortage areas, and medically underserved areas have been able to hire a qualified substitute provider (aka a locum tenens) on a short-term basis. Because the crux of the issue is the number of providers credentialed at a clinic and that clinic’s Medicare patient mix, we are seeking to expand this capacity nationwide with the Prevent Interruptions in Physical Therapy Act.14 Enactment of this legislation would enable all physical therapists practicing in outpatient settings to use a locum tenens.
As a result of significant advocacy efforts, stakeholder pressure, and the looming expiration date of the relief, in just the past two years Congress has acted four times to pause the 2% sequestration and twice to increase the value of the Medicare conversion factor. Two lessons are to be learned from this. First, Congressional motivation is strongly influenced by a deadline. Second, without a steady drumbeat of constituent voices asking for intervention, this would not have been achieved.
Many of you responded to PPS’s Action Alerts last year to ask your lawmakers to provide relief from impending Medicare cuts as well as cosponsor other bills that would improve your capacity and bottom line. Thank you! I invite all of you to commit to being part of our advocacy efforts in 2022. PPS makes it easy to reach out to your lawmakers with one-pagers for each priority bill, template communications, and access to the APTA Action Center. It is important to be involved because often it takes a chorus of constituents or repeated conversations to compel Members of Congress to act. While sometimes it may seem as if your efforts to communicate with them lands on deaf ears, or they don’t share your sense of urgency, don’t give up. Members of Congress are more likely to act when a number of their constituents are asking for assistance.
1PPS APTA. Legislative & Advocacy Priorities 117th Congress. https://ppsapta.org/advocacy/legislative-priorities.cfm. Accessed January 12, 2022.
2H.R.315 – Medicare Sequester COVID Moratorium Act. https://www.congress.gov/bill/117th-congress/house-bill/315/cosponsors?q=%7b%22search%22:%5b%22hr315%22%5d%7d&s=1&r=1&overview=closed&searchResultViewType=expanded. Accessed January 12, 2022.
3Letter to Senate and House Representatives. https://ppsapta.org/sl_files/1A565590-9D24-7269-71644540710310FE.pdf. Published March 12, 2021.
4Letter to Senate and House Representatives. https://ppsapta.org/sl_files/11E3D718-B49F-C075-E51CB8588CD03094.pdf. Published February 2, 2021.
5Letter to Senate and House Representatives. https://ppsapta.org/sl_files/0DBED1D2-FE43-1CCB-87826A5F54488841.pdf. Published July 23, 2021.
6Letter from Congress to Speaker Pelosi and Leader McCarthy. https://ppsapta.org/sl_files/5C6D53B8-0D81-C476-1D9B173157AC50FD.pdf. Published October 14, 2021.
7Letter to Centers for Medicare and Medicaid Services. https://ppsapta.org/sl_files/EA2908EC-04D1-F6D6-FEDF6BA6E13C8369.pdf. Published September 13, 2021.
8PPS APTA. Permanent Medicare Coverage Of Physical Therapy Provided Via Telehealth. https://ppsapta.org/sl_files/21E8764C-0C5B-9CC3-56F7C14B641367C4.pdf. Accessed January 12, 2022.
9Letter to Representatives Rush & Smith. https://ppsapta.org/sl_files/83CF80DB-DEA7-7F79-70B467778BD6D96C.pdf. Published October 8, 2021.
10PPS APTA. Protect Community-Based Physical Therapy Care Provided by Physical Therapist Assistants. https://ppsapta.org/sl_files/988B0124-F69D-41A6-34B4AF4B88F18D73.pdf. Accessed January 12, 2022.
11Letter to Directors Blackford and Richter. https://ppsapta.org/sl_files/4390CA9C-BB98-015F-6D1FF44E5FC3A018.pdf. Published January 10, 2022.
12PPS APTA. Reduce Administrative Burdens Associated With Prior Authorization. https://ppsapta.org/sl_files/9B0CD6BD-A39F-5C4A-B4E8718D34A90ACF.pdf. Accessed January 12, 2022.
13The Improving Seniors’ Timely Access to Care Act of 2021 (S. 3018/H.R. 3173) List of Supporting Organizations. RegRelief. https://www.regrelief.org/wp-content/uploads/2021/11/The-Improving-Seniors-Timely-Access-to-Care-Act-List-of-Supporting-Organizatons-2.pdf. Published November 19, 2021.
14PPS APTA. Ensure Uninterrupted Access To Care. https://ppsapta.org/sl_files/9BD1AF51-AAD6-157E-3DE6DD65CE9CAF2F.pdf. Accessed January 12, 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.