Legislative and Advocacy Progress in the 114th Congress
By Alpha Lillstrom Cheng, JD, MA, and Jerry Connolly, PT
January 1, 2017
Over the past two years your lobbyists utilized the Private Practice Section (PPS) legislative and advocacy priorities for the 114th Congress to guide PPS advocacy efforts. With these goals in mind, we cultivated and capitalized on the relationships we have built with members of Congress. Through these efforts and PPS member engagement, we have been able to advance legislation that seeks to remove barriers to access as well as improve the business opportunities and climate for private practice physical therapists. While our advocacy goals have not been fully attained, we can take pride in the progress that has been made. We look forward to building on these accomplishments in pursuit of our goals. In boldface in the following are the Section’s advocacy priorities for the 114th Congress that received the most attention and activity, along with a detailed explanation of the legislative and regulatory activity in pursuit of the PPS mission.
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.
PPS joined with other stakeholders to achieve a permanent repeal of sustainable growth rate (SGR) in April 2014 as a result of the passage of the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA). We got very close to including the full repeal of the Medicare Therapy Cap in that same law. One of our long-time champions, Senator Ben Cardin (D-MD), offered an amendment to the Senate’s version of the MACRA legislation seeking to repeal the Medicare therapy cap. Unfortunately, in the end, the Senate was two votes shy of accepting that amendment to the bill. While we were profoundly disappointed, we parlayed that support into amassing a record-breaking number of cosponsors for the Medicare Access to Rehabilitation Services Act (HR 775/S.539) in both the House and the Senate. The House bill attained 238 cosponsors, which is 55 percent of the members of the House of Representatives. This is 12 more than the record-breaking number of cosponsors obtained in the 113th Congress. When we secured 35 cosponsors in the Senate, we surpassed the previously historic level of support by two. We will continue working with the American Physical Therapy Association (APTA) and other stakeholders to develop strategies for how best to achieve the goal of repealing and replacing the Medicare therapy cap in the 115th Congress. Because the current exceptions process will expire in December 2017, we anticipate that there will be movement on this policy.
Achieve legislation that allows physical therapists in private practice to opt out of Medicare or privately contract with Medicare patients.
Current law only allows for a select list of medical professionals (that does not include physical therapists) to opt out of Medicare. Additionally, under current law when an eligible provider does opt out, it must be a comprehensive, practicewide opt-out. Prior to 2014, only the House bill seeking to expand Medicare opt-out policy included physical therapists in the list of providers eligible to provide care to Medicare beneficiaries and be paid directly by the patients. In the 114th Congress, we worked to include physical therapists in the Senate version of the Medicare Patient Empowerment Act (HR 1650/S.1849). This bill would make it possible for all Medicare-eligible providers to privately contract with and accept direct payment from some Medicare beneficiaries but still bill Medicare for others, thereby empowering individual beneficiaries by expanding their choices. Despite our efforts, there has not been much activity on the issue these past two years. In large part this is because the 31 House and the 6 Senate cosponsors were all Republicans. Democrats are generally wary of moves toward privatization or creating opt-out options within Medicare; it is therefore not surprising that no one from that party joined the bill. In the 115th Congress we will be focusing more on the message that this legislation provides needed flexibility and gives options to both beneficiaries and providers at no cost to the Medicare program.
Achieve legislation that allows physical therapists in private practice to utilize locum tenens.
Medicare has long had a policy that recognizes the realities of a private practitioner and that life can get in the way of the best-laid plans. Under current law, physicians and a discrete list of Medicare providers are able to hire a fully qualified and licensed substitute or locum tenens to provide care to Medicare beneficiaries when the regular provider is out of the office for reasons such as medical or family emergency, maternity leave, continuing education, and even vacation. This issue is most relevant to private practice physical therapists because of their direct billing relationship with Medicare and the need to be certified via an in-person site visit. As you know, a practitioner must be credentialed at a specific location in order to be reimbursed for care provided to Medicare patients at that clinic. In contrast, physical therapists working in hospital settings don’t have this problem because their services are billed under the umbrella of the hospital, thereby allowing the facilities to simply hire any qualified therapist to make sure all the scheduled patients can be seen.
We sought to solve this problem through the passage of the Prevent Interruptions in Physical Therapy Act (HR 556/S.313)—a simple, technical, legislative fix that would add physical therapists to the list of providers eligible to use the locum tenens provision in Medicare. This bipartisan bill gained wide support, garnering 105 cosponsors in the House of Representatives and 33 cosponsors in the Senate.
We long argued that allowing physical therapists to bring in a substitute to ensure uninterrupted access to a physical therapist would save money and improve outcomes. Regrettably, the Congressional Budget Office (CBO), the accounting arm of Congress, didn’t agree. The formulas employed by the CBO do not consider savings generated nor the long-term outcomes produced when assessing the cost implications of a policy. Instead, CBO only looks at any given day, calculates the national cost of physical therapy on that day, then extrapolates from there. According to their accounting principles, any day that a Medicare beneficiary has access to physical therapy is a day when a cost is incurred. CBO doesn’t assign a cost to a patient’s regression and the additional visits necessary as a result of days a patient spends waiting for his or her physical therapist to return. Instead, CBO assesses a lower cost due to fewer physical therapy visits accomplished on a given day. Using this approach, CBO decided that our simple, technical, legislative fix carried a hefty price tag.
In June 2015, in an effort to reduce the overall cost of the legislation, the Senate Finance Committee passed a modified version of the Prevent Interruptions in Physical Therapy Act that only applied to therapists practicing in rural, medically underserved, and health professional shortage areas. In October 2015, the Health Subcommittee of the House Committee on Energy and Commerce held a hearing on locum tenens at which PPS board member Sandra Norby testified. Norby told the committee that because physical therapists cannot use the locum tenens provision, she endured considerable hardship in order to keep her remote clinic staffed and serving the community during a colleague’s maternity leave. Your lobbyists collected and distributed additional anecdotes from PPS members across the country. Many subcommittee members, armed with specific examples, took the opportunity during the hearing to highlight the experiences and needs of private practice physical therapists in their districts. The legislators spoke in strong support of the bill and its potential positive impact on their constituents.
In early December 2016, Congress passed a large health care package known as the 21st Century Cures bill. This legislation was a compilation of policies that bolstered investment in public health and funded efforts to improve the quality of health care. Among the many provisions of the 21st Century Cures package was the language of the Senate-passed version of the Prevent Interruptions in Physical Therapy Act. Under this newly passed law, physical therapists practicing in rural, medically underserved, and health professional shortage areas will be able to utilize Medicare’s locum tenens arrangements to contract with a qualified substitute physical therapist to provide care for their Medicare-enrolled patients. Using this mechanism, the contracting therapist would receive reimbursement for the care provided by the substitute therapist, and the locum tenens provider would be paid a fixed amount per diem. This arrangement can last up to 60 days. This expansion of Medicare’s locum tenens provision will go into effect as early as six months after passage of the law.
Address and mitigate the negative effects associated with physician self-referral.
Current law, referred to as the Stark law, prohibits a Medicare or Medicaid patient’s physician from referring a patient to an entity providing designated health services if the physician (or an immediate family member) has a financial relationship with that entity. This is of grave concern to PPS because of the waste and overbilling that could result from a physician referring his or her patient for unnecessary or inappropriate care simply because the physical therapy practice was owned by that same physician. Furthermore, biased and self-serving referrals could impede beneficiary choice and access to the most appropriate care.
PPS remains steadfastly opposed to “referral-for-profit.” However, as health care policy moves toward increased integration, mechanisms such as bundled payment and accountable care organizations, it has become apparent that the bright lines restricting the referrals of patients to partner-providers have not only become strained but also an obstacle in many cases. As a result, policymakers are beginning to revisit the Stark law as a whole. Congress appears to be preparing to make changes that would allow for episode payment while relying on existing anti-kickback and anti-trust laws to protect against the waste and fraud and infringement of beneficiary choice that could result from self-referral.
The in-office ancillary services exception (IOASE) was originally created to allow physicians to self-refer and bill the Medicare program for typical same-day services such as X-rays. Unfortunately, abuse of the IOASE has functionally diluted the self-referral prohibitions of the Stark law and its policy objectives, making it simple for physicians to avoid the law’s prohibitions by structuring arrangements that meet the technical requirements while circumventing the intent of the exception. The PPS board endorsed this year’s Promoting Integrity in Medicare Act (PIMA) of 2016 (HR 5088), which would remove physical therapists from the IOASE. While physical therapists are eager to be removed from the IOASE, the legislative environment of the 114th Congress was not conducive to addressing this issue. The bill had exclusively Democrats as cosponsors. This is not a surprise, as members of the Republican party generally oppose restrictions to physician self-referral. As the discussion continues, we intend to communicate the cost and risk of self-referral—to the patients and to the providers.
Achieve legislation that allows reimbursement through Medicare and federal health plans for physical therapy care through telehealth.
During the 114th Congress, more policymakers became interested in how telehealth could be used to improve access to quality and efficient care. As a result, three bills to expand Medicare reimbursement for telehealth were introduced. Legislative action is essential as the Centers for Medicare & Medicaid Services (CMS) made it clear that it cannot use its regulatory authority to reimburse physical therapists for telehealth.
The Furthering Access to Stroke Telemedicine (FAST) Act (HR 2799/S.1465) would allow for Medicare reimbursement, regardless of originating site, when telehealth is used to assess and diagnose patients with stroke. Current law grants reimbursement for this use of telehealth in rural areas only. Recognizing that approximately 94 percent of strokes occur in urban or suburban areas, members of Congress have sought to expand the policy nationwide. HR 2799 gained 171 cosponsors in the 114th Congress, while the Senate companion bill didn’t grow beyond its original two Republican cosponsors.
This past Congress, the CONNECT for Health Act (HR 4442/S.2484) was the primary telehealth bill in the Senate and contained a number of notable provisions. It would have allowed Medicare Advantage plans to offer telehealth as a basic benefit with no additional fee charged to the patient and sought to create a demonstration program allowing Merit-Based Incentive Payment System (MIPS) providers and those in Accountable Care Organizations (ACOs) to be reimbursed by Medicare for services provided via telehealth. Because physical therapists are not MIPS-eligible providers at this time, we worked to get a provision added to the bill that would empower the Secretary of Health and Human Services to include additional types of providers, including physical therapists. The bill also incorporated the goal of the aforementioned FAST Act by allowing for reimbursement of stroke assessment using telehealth. The CONNECT for Health Act had 32 cosponsors in the House and 18 cosponsors in the Senate. It is expected that a revised version of this bill will be reintroduced in the 115th Congress. We have been in close communication with its sponsors to make sure they understand the importance of including rehabilitation therapy in the reintroduced legislation.
Last Congress, 67 members of the House of Representatives signed on as cosponsors of the bipartisan Medicare Telehealth Parity Act (HR 2948), which would have expanded the list of distant-site providers eligible for Medicare reimbursement for care provided via telehealth to include physical therapists and other therapy provider groups. However, the legislation did not expand the “originating site” definition to include physical therapy locations, thus effectively excluding private practice physical therapists from reimbursement under this policy. We are working to correct this oversight before the bill is reintroduced to this Congress.
Promote policy that increases opportunities for veterans to receive outpatient services provided by physical therapists in private practice.
For the past few years, the public, and therefore the Congress, have been increasingly critical of the many obstacles that prevent veterans from accessing quality care in a timely manner. Congress responded by enacting a succession of laws, the Veterans Access, Choice and Accountability Act (“Choice Act”)1 and the Veterans Choice Improvement Act,2 which have empowered veterans to receive care in their communities and from community-based providers. We lobbied successfully to make sure that physical therapists are included in the list of providers able to care for veterans in their private practice clinic locations.
In 2016, three proposed rules were published that impact physical therapy. Each of these regulations was relevant to the legislative and advocacy directive for the 114th Congress that was set forth by the PPS Board: Pursue improvements in the Physician Quality Reporting System (PQRS) that would result in appropriate participation and recognition of the value of physical therapy and promote the adoption by Accountable Care Organizations (ACOs) of quality measures that include functional health status. PPS filed comments on each of the following proposed rules on behalf of the membership and its interests.
Implementation of the Merit-Based Incentive Payment System
The passage of Medicare Access and CHIP Reauthorization Act of 2015 (MACRA) repealed the Sustainable Growth Rate (SGR) and tasked CMS to move Medicare reimbursement from payment for volume (fee-for-service) toward payment for value (quality). In May 2016, CMS published a proposed rule describing how it would implement the transition from Physician Quality Reporting System (PQRS) and other quality programs to a quality payment program known as the Merit-Based Incentive Payment System (MIPS).
As mentioned previously, physical therapists are not included in MIPS at this time but may be added to the program as early as 2019. We anticipate that the parameters for applying MIPS to physicians and other providers in this first group will provide us insight into how the program could impact physical therapists in the future. PPS submitted comments to caution CMS about the risks of the two-year gap in quality reporting (PQRS ceased to exist after December 2016) as well as to suggest that when the time comes to include physical therapists in the MIPS program that they be granted the same transition-year flexibility that is being granted to those clinicians participating these first two years. Additionally, we requested that CMS work with physical therapists to ensure appropriate and relevant measures are used to assess quality for physical therapy patients and providers. We stressed that when physical therapists are evaluated for quality under MIPS, the calculation should not hinge on infrastructure that physical therapists have not been required or supported to use, such as the use of an electronic health record system.
Medicare Physician Fee Schedule
Each year CMS issues regulations pertaining to the Medicare Physician Fee Schedule (MPFS). In 2016 the primary issue of concern to physical therapists revolved around the proposed adoption of new evaluation codes divided into tiers of low, moderate, and high complexity. The new codes were established through the sanctioned coding methodology long directed by the American Medical Association (AMA). Moreover, the codes were surveyed by the physical therapy profession through the APTA, and values were recommended that correspond to the complexity of service. In the proposed rule, CMS expressed its intent to adopt tiered evaluation codes but to value—and reimburse—all three evaluation codes at the same level. In its comments to CMS, PPS strongly urged the agency to adopt values and payment levels that correspond to the detailed complexity of each code descriptor. While CMS was unmoved by feedback from PPS and numerous other stakeholders that challenged the use of a single value for the varied complexity codes, CMS did hint that they plan to collect and analyze utilization data of the complexity levels for possible future rule making.3
That same proposed rule also identified a number of codes that CMS labels as “potentially mis-valued,” and the agency requested input on how to adjust their payment. In response, PPS told CMS that the AMA Relative Value Update Committee (RUC) is the appropriate entity to survey and value the codes. In its final rule, CMS did not make any adjustments to the value of those codes; instead they indicated that they plan to discuss the valuation of 10 potentially misvalued codes in the 2018 Medicare physician fee schedule update.
Comprehensive Care for Joint Replacement
A third proposed rule sought to expand the current Comprehensive Care for Joint Replacement (CJR) episode payment model. The current model covers only total hip and total knee replacements. CMS proposed to expand that program to include patients undergoing surgical hip and femur fracture treatment (SHFFT) episodes. The expansion is pegged to launch on July 1, 2017, and to last 5 performance years—through December 31, 2021. In its comments to CMS, PPS reiterated its concern that the hospital-centric model granted excessive control to hospitals and inpatient post–acute care facilities.
Additionally, PPS asked CMS to clarify which entities are allowed to participate as “collaborators” under the model. This question was posed because some have interpreted the regulations to mean that only physician groups—not groups of suppliers such as physical therapists—were able to contract with the hospital as a group collaborator. If physical therapy group practices are not allowed to serve as collaborators, each physical therapist in a group would have to contract individually with a hospital in order to participate in the bundled payment program.
The Board’s adopted goals are associated with strengthening PPS’s grassroots legislative effectiveness, in part by growing and strengthening the Section’s federal Key Contact program.
PPS’s Key Contact Program has expanded considerably since its establishment in 2013. The goal of the program is to have a PPS member assigned to every member of Congress in leadership or on a committee with jurisdiction over health issues (Senate Finance Committee, Senate Health Education Labor and Pensions (HELP) Committee, House Ways and Means Committee, and House Energy and Commerce Committee). After adding 64 new Key Contacts this year, we have matched 232 PPS members with a member of Congress. We now have at least one Key Contact in each state, with the exception of Hawaii and Vermont. Ultimately, we aspire to have a PPS member assigned to every member of the House and Senate. We are always eager to welcome additional volunteers, especially as a new Congress is sworn in and some committee memberships will change.
Our Key Contacts are brought to Washington, D.C., by PPS for training and preparation for visits to their legislators. In April 2016, PPS sponsored a select group of PPS Key Contacts to attend the APTA Federal Advocacy Forum in Washington, D.C., and receive a presentation tailored to focus on PPS advocacy priorities. These Key Contacts also went to Capitol Hill and effectively lobbied their members of Congress on issues of particular relevance to the private practice physical therapist, shared their perspective on PPS’s legislative priorities, and achieved additional cosponsors on key bills. A Key Contact’s work continues back at home where they meet with legislators, host site visits at their clinics, and attend public events and fundraisers. Each of these venues provides the Key Contact with an opportunity to engage with their legislators on behalf of the profession and the patients served.
Since January 2016 a monthly legislative update has been distributed to Key Contacts to ensure they have the most up-to-date news regarding the legislative efforts and activity on Capitol Hill. These updates include a hyperlink to the list of cosponsors for each bill to enable the Key Contact to readily determine whether their target legislator has cosponsored the bills discussed.
Grassroots engagement is the foundation of the PPS advocacy program, and the Key Contacts are the agents for change. If you are interested in becoming a Key Contact, please contact the PPS office.
Much of the momentum we built last Congress has laid the groundwork for our ability to move legislation in the future. In January 2017, a new Congress will be sworn in with some new members in each chamber. Of particular importance is that leadership positions on the two House committees that oversee health care issues have changed. Representative Greg Walden (R-OR) will be the new Chair of the House Energy and Commerce Committee, and Representative Richard Neal (D-MA) will be the new Ranking Member of the House Ways and Means Committee. In the Senate, the leadership of the Finance and Health, Education, and Labor and Pensions (HELP) committees has stayed the same.
In order to prepare for the 115th Congress, PPS’s Board of Directors and the Government Affairs Committee have updated the PPS legislative and advocacy priorities. These priorities respond to the changing landscape of health care policy and reflect emerging as well as ongoing priorities of the Private Practice Section. The Section’s lobbyists will use these priorities as the guide for PPS advocacy efforts for the next two years. We will continue to work with both sides of the aisle and in both chambers to identify and act on opportunities to advance our legislative agenda. We will also respond to the regulatory proposals that are increasingly coming our way. On both fronts, PPS grassroots engagement is critical to our efforts, so please continue to be involved.
1. Public Law 113-146, www.congress.gov/113/plaws/publ146/PLAW-113publ146.pdf.
2. Public Law 114-41, www.congress.gov/114/plaws/publ41/PLAW-114publ41.pdf.
3. CMS-1654-F: Medicare Program; Revisions to Payment Policies Under the Physician Fee Schedule and Other Revisions to Part B for CY2017; Medicare Advantage Bid Pricing Data Release; Medicare Advantage and Part D Medical Loss Ratio Data Release; Medicare Advantage Provider Network Requirements; Expansion of Medicare Diabetes Prevention Program Model; Medicare Shared Savings Program Requirements, www.gpo.gov/fdsys/pkg/FR-2016-11-15/pdf/2016-26668.pdf, p. 80335.
4. CMS-1654-F, p. 80339.
Alpha Lillstrom Cheng, JD, MA, 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.
Jerome Connolly, PT, CAE, is a registered federal lobbyist whose firm, Connolly Strategies & Initiatives, has been retained by PPS. A physical therapist by training, he is a former private practitioner who throughout his career has served in leadership roles of PPS and APTA. Connolly also served as APTA’s Senior Vice President for Health Policy from 1995 to 2001.