It’s No Secret
Emerging Legislature Post-COVID
By Alpha Lillstrom Cheng, JD, MA
It’s no secret that your practice and your patients have been significantly impacted by the COVID-19 pandemic, changes in practice volume, cuts to payment, and utilization of new technologies to name just a few.
One way to address these challenges is to pursue legislative and regulatory changes. Advocating for your practice and your patients can be achieved through engagement with current policy makers. At the same time, it is crucial that you also fill out your ballot and vote for either incumbents who have listened or candidates which you think are most likely to represent your needs. Lawmakers and elected officials aim to please; in order to do so, they need to know what you want and to hear from you.
APTA Private Practice remains focused on influencing payment reform proposals and continues to fight for fair and equitable payment for physical therapists and physical therapist assistants in private practice across the healthcare continuum. We are working to gain cosponsors and pursue passage of the bill language that would provide the most impact; we are also lobbying lawmakers to champion our causes and lead additional legislation that would address the needs we have identified. In the 117th Congress (2021 and 2022), we have made some progress on APTA Private Practice’s legislative priorities. While some lawmakers have been distracted by partisanship and politics, others have been listening and learning about the value of supporting policies which will enable private practice physical therapists to remain viable providers of therapy services in their community-based clinics. Here are some highlights of the progress we have made. The bold text references APTA Private Practice’s advocacy priorities.
EXTENDING THE DURATION OF PHE-LINKED WAIVERS
The COVID-19 public health emergency (PHE) was first declared on January 27, 2020 and has been renewed every 90 days since. This past July, it was extended again until October 13, 2022. The Department of Health and Human Services (HHS) has promised that it will provide 60-days’ notice before revoking the PHE designation. No notice was given by the mid-August deadline, therefore it is expected that the PHE will be renewed again in October.
While the PHE must be declared in units of 90 days, it may be called off before it expires. Some suggest that it will be renewed only through the end of the year but most are expecting a full 90-day renewal — through mid-January 2023. As winter is a time when COVID-19 case numbers have risen in years past, it is possible the PHE designation may be maintained until April 2023.
The Coronavirus Aid, Relief, and Economic Security (CARES) Act was enacted in March 2020 in order to provide economic assistance to Americans and business as well as flexibility in how to ensure continued access to healthcare services during the pandemic. APTA Private Practice has been pursing legislation to include physical therapists and physical therapist assistants among those nonphysician providers who are authorized to be paid for providing care to Medicare beneficiaries using telehealth. While not a permanent change, the CARES Act empowered HHS to provide a waiver to allow physical therapists and physical therapist assistants (PTAs) to provide physical therapy care via telehealth for the duration of the PHE.
Our continued efforts to educate policymakers about how physical therapists and PTAs have successfully used telehealth to provide patient care has been impactful. With the enactment of the Consolidated Appropriations Act in March 2022, rehabilitation therapists were among a small subset of provider types who received a 151-day extension of coverage for telehealth provided via telehealth . Therefore, even if the PHE were allowed to lapse at year end, physical therapists and PTAs will be able to continue providing Medicare beneficiaries care via telehealth until at least the end of May 2023. The actual expiration date of the PHE-linked flexibility of rehabilitation therapists to independently provide care via telehealth will not be known until the PHE expires and triggers the 151-day countdown. Keep in mind that unless the law is changed, once the waiver expires, physical therapists and PTAs will only be able to provide “incident-to” therapy care via telehealth.
Utilizing the authority granted to it by the CARES Act, HHS also temporarily modified the direct supervision requirements so that rehabilitation therapists in private practice are able to achieve direct supervision via audio/visual communications. This flexibility will expire at end of the year in which the PHE ends. At this point that will be December 31, 2022, but because of the 60-day heads up promised by the Administration, by mid-November 2022 we will know if the PHE will extend into next year and thereby allow the supervision flexibility to remain in place through the end of 2023.
EVOLUTION OF EMBRACING TELEHEALTH
As a result of the COVID-19 Public Health Emergency (PHE), access to telehealth has been temporarily expanded and telehealth coverage has garnered wide-spread, bipartisan support. CMS does not have authority to reimburse physical therapists for telehealth outside of the PHE waivers provided by the CARES Act. 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. Lawmakers across the spectrum have recognized that it is a valuable and cost-effective way to ensure access to care and services. A notable number of Members of Congress have stated their support for moving legislation that would make some of the COVID-19-era waivers permanent. Multiple bills have been introduced which offers lawmakers a buffet of policy options to choose from when preparing a large-scale telehealth package. Keep in mind that part of the challenge is that a comprehensive telehealth package will be very expensive and lawmakers are wary of spending that much money when instead they could continue shorter-term policies which cost less.
APTA Private Practice has pursued garnering cosponsors for the bills would enable physical therapists to be paid for providing care to Medicare beneficiaries using telehealth. Our top priority legislation is the Expanded Telehealth Access Act (S.3193/H.R.2168) which would permanently add physical therapists, physical therapist assistants, and other rehabilitation therapists to the list of “distant site providers” in statute. Enactment of this bill would permanently secure payment for providing care to Medicare Beneficiaries via telehealth as well as allow for parity in payment. In comparison, the Telehealth Modernization Act (S.368/H.R.1332) which covers a rage of telehealth applications only gets us part of the way because while the bill empowers the Secretary of HHS to permanently expand the types of health care providers that can offer telehealth services — it does not specify that therapists and their assistants must be included. The Telehealth Modernization Act would also enable the home of a beneficiary to serve as the originating site (i.e., the location of the beneficiary) for all services.
However, much of the legislation which has been introduced has focused on minor modifications to current law and extending PHE-linked policies for two years. The Telehealth Extension Act (H.R.6202) and a similar bill in the Senate, the Telehealth Extension and Evaluation Act (S.3593) both seek to extend the current PHE-related telehealth waivers for an additional two years. These two bills also remove current originating site and geographic limitations from the statute — this would allow all those (distant site) providers who are authorized to provide care via telehealth to Medicare beneficiaries to do so without the current site or location restrictions. However, it is important to note that until physical therapists are allowed to provide care via telehealth on a permanent basis — by way of the enactment of the legislative text found in the Expanded Telehealth Access Act — this change in site restrictions will not be a benefit. Progress was made when on July 27, the House passed an amended version of the Advancing Telehealth Beyond COVID-19 Act (H.R. 4040) in order to extend current PHE-linked coverage of telehealth and flexibility in originating sites through December 31, 2024. It is now up to the Senate to also approve this extension. It is unclear if the Upper Chamber will agree to the blanket 2-year extension of current telehealth policy as the bill is estimated to cost $2.3 billion.
An end-of-year healthcare package is a common occurrence, even more during Lame Duck — the period of time after the General Election and the end of a Congress. As we pursue coverage for telehealth in that package, APTA Private Practice will continue to follow the mandate of the Section’s advocacy priorities to promote the use of a hybrid model such that physical therapist services may be provided in person and via telehealth. As discussed above, our ultimate goal is the inclusion of the language of the Expanded Telehealth Access Act in whatever legislative package is moving through Congress and that payment for physical therapist services provided via telehealth is contingent upon an in-person physical therapy visit being available to all patients. As such, please join us in asking Members of Congress to cosponsor the APTA Private Practice-endorsed bipartisan Expanded Telehealth Access Act. However, should the Senate pass the Advancing Telehealth Beyond COVID-19 Act or similar legislation which provides a blanket extension of telehealth coverage, this would remove pressure for Congress to vote on permanent telehealth policy by the end of this Congress.
PHYSICAL THERAPIST ASSISTANTS
A 15% Medicare payment differential went into effect on January 1, 2022 for care provided in-whole or in-part by a therapist assistant. In the fight for fair and equitable Medicare reimbursement for physical therapists and PTAs in private practice and the elimination of administrative barriers, APTA Private Practice is working to reduce the impact of the differential policy by pursuing passage of the bipartisan Stabilizing Medicare Access to Rehabilitation and Therapy (SMART) Act (H.R.5536).
As written, this bill would suspend the 15% therapy assistant payment differential for the rest of 2022 and exempt therapy assistants working in rural and medically underserved areas from the payment cut. The SMART Act would also standardize the supervision requirement under Medicare across all settings. In all outpatient provider settings (i.e., hospitals, SNFs, rehabilitation facilities, etc.) other than private practice settings, Medicare only requires general supervision of PTAs or occupation therapy assistants (OTA). When under general supervision, the physical therapist or occupational therapist is not required to be on site to provide direction and supervision, instead availability through audio telecommunications is sufficient. Enactment of this provision would standardize Medicare’s supervision requirement so that general supervision would be sufficient for therapy assistants in private practice settings. This change in Medicare policy would thereby increase a private practice’s ability to meet the needs of their patients — via extended hours and increased locations of service because of the removal of the requirement of on-site direct supervision (which can temporarily be achieved via audio/visual communications). Remember however that regardless of Medicare’s supervision requirement, therapy providers will still need to comply with their state and/or local practice requirements if they are more stringent than Medicare.
Lawmakers are always concerned about the cost of sweeping policy changes, especially when considering revocation of Medicare payment cuts. In order to be armed with detailed cost estimates of each provision of the SMART Act, APTA Private Practice and other rehabilitation therapy stakeholders commissioned Dobson DaVanzo & Associates to develop an estimate of the impact of the bill on Medicare spending. While it is clear that suspending the therapist assistant differential or exempting PTAs and OTAs providing care in rural and underserved areas would have a cost, we were thrilled to show that changing the Medicare supervision requirement in private practice settings would be a cost-saver.
ADMINISTRATIVE SIMPLIFICATION — PRIOR AUTHORIZATION
In pursuit with the Section’s goal to advocate for standardized processes to promote administrative simplification as well as policies which 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, APTA Private Practice has joined a coalition of more than 450 organizations which have been lobbying in support of the Improving Seniors’ Timely Access to Care Act (S.3018/H.R.3173).
Unlike standard Medicare, Medicare Advantage (MA) plans are allowed to use prior authorization. Recognizing a need, this legislation seeks to require MA plans to establish an electronic prior authorization program that meets specified transparency standards, including real-time decisions in response to requests for items and services that are routinely approved. Plans will also be required to publish data annually on their use of prior authorization, including the percentage of approved and denied requests and the average response time. The bill was drafted in consultation with the insurers and the process improvements that are required by the bill language are those which the plans have stated they could put into place.
Support for the bill has been increasing steadily since an April 28, 2022 HHS Office of Inspector General (OIG) report which found that Medicare Advantage Organizations (MAOs) denied prior authorization and payment requests that met Medicare coverage rules, stating, “Although some of the denials that we reviewed were ultimately reversed by the MAOs, avoidable delays and extra steps create friction in the program and may create an administrative burden for beneficiaries, providers, and MAOs.”
In June, APTA Private Practice and 6 other rehabilitation therapy organizations submitted a joint Statement to House Energy and Commerce Subcommittee on Oversight and Investigations for the hearing entitled, “Protecting America’s Seniors: Oversight of Private Sector Medicare Advantage Plans”. On July 27, 2022 the House Committee on Ways and Means committee considered the Improving Seniors’ Timely Access to Care Act and cleared it — unanimously and without any changes — making the bill ready to be considered by the full House. Use APTA Private Practice’s one-pager (bit.ly/3AAAM2D) to ask your lawmaker to sign onto and include the bill in must-pass legislation.
POWER OF YOUR VOICE AND YOUR VOTE
Communicating with your elected officials is crucial. When you reach out you are representing yourself, your business, and your patients. When you share your experiences navigating payment challenges, new technologies (both the positive elements and well as the obstacles) and administrative burdens, policy makers get to hear which policies are working and which need to be changed. Sometimes all they need to do is tweak the current policy a bit, other times you are asking for significant intervention. It is important to remember that if you do not take the time to share with them what you need in order to keep serving the patients of your community, they will be responding to those who do reach out — and the “problems” that others bring to their attention and ask to have changed might be those things which you want to maintain.
Your vote this November is needed so that you can be part of the process to select those who are tasked to represent you in Congress. Make a plan to vote; each state sets its own rules and deadlines for how one can register to vote and when you can cast your ballot, so check with your local election board to make sure you are prepared. If you plan to vote by mail, request your ballot by mid-October — especially if you plan to attend APTA Private Practice’s Annual Conference. This will provide a sufficient amount of time to receive your ballot and send it back so that it arrives before the state’s deadline — and check to make sure your ballot has sufficient postage (possibly more than one stamp). Be sure to follow all of the steps needed to validate your mail-in ballot, including signing the envelopes the same way you did when you registered to vote and/or getting witnesses. Participating in the General Election will allow you to proudly declare that you are a voter when you talking to your lawmakers.
It’s no secret that access to physical therapy services improves patient outcomes. Advocacy efforts in Washington D.C. by your lobbyist and across the nation by the APTA Private Practice Key Contact team, and clinic visits have been effective tools to continually remind policy makers that physical therapists should be seen as a primary care provider for neuromusculoskeletal dysfunction. The impactful conversations we have with lawmakers and candidates have been promoting the physical therapy profession as a point of entry into the medical model for movement disorders. On our quest for policies which enable physical therapists to enter into private practice and sustain their small businesses while supporting the economic vitality of their community, each time we engage with a lawmaker or their staff we remind them that APTA Private Practice members are small business owners as well as healthcare providers — by doing so we multiply the relevance of the conversation for the Member of Congress. Similarly, by responding to issues that we bring to their attention, legislators are able to support healthcare providers as well as small business owners who are making a positive impact in their district.
All APTA Private Practice members are encouraged to join these advocacy efforts. The greater number of constituents, business owners, and providers a lawmaker hears from the more likely it is that they will act upon the request. Check the Advocacy Blog for talking points to use when you reach out to your lawmakers and ask them to cosponsor APTA Private Practice’s top priority legislation. Be sure to remind them that as these priorities are achieved, they will enable you to serve your patients, provide good jobs for their constituents, and possibly grow your businesses to improve the community even more.
1March 27, 2020. P.L. 116-136.
2March 15 2022, P.L. 117-103
3P.L. 117-103, Section 302. Expanding Practitioners Eligible to Furnish Telehealth Services
4American Physical Therapy Association (APTA), American Health Care Association (AHCA), American Occupational Therapy Association (AOTA), Alliance for Physical Therapy Quality and Innovation (APTQI), National Association of Rehabilitation Providers and Agencies (NARA), and National Association for the Support of Long Term Care (NASL)
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.