Legislative and Regulatory Advocacy Priorities for the 115th Congress

By Alpha Lillstrom Cheng, JD, MA, and Jerry Connolly, PT, CAE

February 2, 2017

Every two years, each seat in the House of Representatives and one-third of the one hundred U.S. Senate seats are up for election. The 115th Congress began on January 3, 2017, when all of the members of the House of Representatives and 34 U.S. senators were sworn in for their terms in office. This new Congress is the most diverse in history, with more minority lawmakers than ever before and a record 21 women in the U.S. Senate. There are 52 new members of the House of Representatives, and the House’s Republican majority was reduced by a dozen to 47. Republicans also hold the majority in the Senate with 52 members to the 46 Democrats and 2 independents who caucus with the Democrats. There are seven new senators, three of whom (Chris Van Hollen [D-MD], Tammy Duckworth [D-IL], and Todd Young [R-IN]) moved from serving their district in the House to representing their whole state in the Senate. While the GOP majority is smaller than in previous Congresses, the party still controls the floor and committee agendas in both chambers.

As you know, legislation does not carry over from one Congress to the next; thus, all bills in which we have an interest must be reintroduced. In many cases, the lead sponsors will remain the same, but in some situations, modifications in sponsorship will be in order. To regain and build support for our initiatives, we must not only advocate for members to cosponsor legislation that they had supported in the past but also reach out to those new members who are less familiar with our issues. You will see new bill numbers and hopefully a growing list of cosponsors on these bills this Congress as we make our way through the two-year term.

Donald J. Trump was sworn in as president on January 20. This will be the first time since 2001 that Republicans held the majority of both houses of Congress as well as the White House. However, this time it is different because Trump is proving to be a president like none that we have previously experienced. It is unclear in what way President Trump will provide support or input for the health reform debate, as well as how he will respond if or when proposals by Congress do not fall in line with his campaign promises.

Congressional leadership has made it clear that they plan to use the budget reconciliation process (allowing for a simple majority vote for passage in the Senate) to pursue repealing provisions of the Affordable Care Act (ACA). However, it will be some time before the details of any replacement package are known. Generally, the first few months of a new Congress are spent making legislative gestures to fulfill campaign promises and discussing the timelines of legislative priorities. Rarely are sweeping legislative reforms enacted right away. It is entirely possible that a broad ACA repeal bill will be enacted this year, but that the specific replacement will be identified and introduced in the future. This is because it is widely believed that the Republicans in Congress have yet to agree on a specific replacement package. It is also anticipated that a repeal signed into law this year could have an effective date that is delayed until after the 2018 mid-term elections in order to minimize the political risk to those who voted to repeal the law.

Legislative and Regulatory Advocacy Priorities for the 115th Congress
In early December, members of the Private Practice Section (PPS) Board of Directors and the Government Affairs Committee (GAC) met to develop the advocacy priorities for the 115th Congress. In order to decide which issues your lobbyists should focus on, the Board and GAC took into consideration the needs and interests of PPS members and the changing landscape of health care policy while also evaluating the political makeup and priorities of the members of Congress as well as the new president and his administration. The following sections present the legislative and regulatory advocacy priorities determined by the Board and the GAC to be most pressing for the 115th Congress.

Legislative
For calendar year 2017, the cap for outpatient physical therapy and speech-language pathology (SLP) services is $1,980.¹ An exceptions process for the therapy cap has been in effect since January 1, 2006, and has been extended multiple times through subsequent legislation. Since 2012, the Centers for Medicare & Medicaid Services (CMS) has applied a manual medical review process to therapy claims when a beneficiary’s annual outpatient physical therapy and SLP services incur combined expenses that exceed $3,700.² CMS’s manual medical review process as well as its current authority to provide an exception to the cap on therapy expire on December 31, 2017. Corrective legislation must be passed before that date in order to extend the exceptions process or, better yet, to repeal the therapy cap itself. Therefore, the Board has decided that one of our priorities is the pursuit of a favorable resolution including the repeal or replacement of the arbitrary per beneficiary therapy caps on outpatient rehabilitation covered by Medicare while encouraging and achieving a streamlined, responsive, and transparent process for manual medical review of Medicare records by Medicare administrative contractors.

One of our long-time champions, Senator Ben Cardin (D-MD), will once again be the lead on this legislative effort in the Senate along with Senators Dean Heller (R-NV), Susan Collins (R-ME), and Bob Casey (D-PA). On the House side, the bill is expected to be reintroduced by two new leads: Representative Erik Paulsen (R-MN) and Representative Ron Kind (D-WI), who both serve on the Ways and Means Committee. They will be joined in this effort by Energy and Commerce Committee members Representatives Marsha Backburn (R-TN) and Doris Matsui (D-CA). The change is due to the fact that neither of the two leads on the bill last Congress, Representative Charles Boustany (R-LA) and Representative Xavier Becerra (D-CA), are serving in the 115th Congress.

PPS remains interested in legislation that allows physical therapists in private practice to opt out of Medicare or privately contract with Medicare patients. For a number of years, legislation has been introduced seeking to make this possible. We anticipate that Senator Lisa Murkowski (R-AK) will remain the lead in the Senate. Since our House champion, Dr. Tom Price (R-GA), has been tapped to be the secretary of Health and Human Services, it is unclear at this time who will be the new lead sponsor in the House. This policy has long been supported by members of the Republican caucus; since both houses of Congress are controlled by Republicans who aim to reform the Medicare program, this Congress may be the time when we can achieve more than collecting cosponsors.

In December of last year, our concerted efforts and grassroots engagement were rewarded with the achievement of a change in Medicare law that would allow private physical therapists practicing in rural, medically underserved, and health professional shortage areas to utilize the locum tenens provision to arrange for a qualified substitute physical therapist to provide care for their Medicare-enrolled patients. While this significant victory begins to address the needs of our members and their patients, we have long argued that the need for a locum tenens hinges more on the size of the practice than its location. Therefore, the Board has adopted a priority that directs us to pursue the expansion of the locum tenens provision of Medicare to include physical therapists practicing in all communities.

During the 114th Congress there was a sharp uptick in the number of bills supporting the use of telehealth as a mechanism to increase access and provide more efficient care. The 21st Century Cures legislation that was signed into law at the end of 2016 requires both CMS and the Medicare Payment Advisory Commission (MedPAC) to submit reports to Congress recommending how best to utilize telehealth for Medicare beneficiary care. Meanwhile, CMS made it clear last year that it cannot use its regulatory authority to reimburse physical therapists for telehealth—making it necessary to change the law before physical therapists and private practice clinics are reimbursed for services provided via telehealth. Making the most of the growing congressional interest, we will work to achieve legislation that allows reimbursement through Medicare and federal health plans for physical therapy care through telehealth.

The Stark Law prohibits a Medicare or Medicaid patient’s physician from referring that patient to an entity to which he or she has a financial relationship. While some members of Congress and stakeholders have expressed concerns about waste and fraud, members of the Republican party generally oppose restrictions to physician self-referral practices. Despite this unfavorable political climate, PPS has reiterated its desire to address and mitigate the negative effects associated with physician self-referral. One option is through legislation seeking to remove physical therapists from the In-Office Ancillary Services Exception (IOASE) to the Stark Law. Another option is by making careful changes to the Stark Law itself that would protect the underlying principle yet provide the flexibility necessary for successful care integration, bundled payment structures, and growth of accountable care organizations, which are the increasingly prioritized aspects of health care delivery (although it remains to be seen if these delivery models will be embraced by the incoming Trump administration). In recent years, CMS has been supporting these reforms and innovation by granting waivers to the extent of their existing authority. In order to continue along this path, policymakers will need to evaluate how to balance the move toward bundled or episode payment while also protecting the integrity of the Medicare program against waste and fraud, as well as infringement on beneficiary choice that has been shown to be associated with self-referral. We will share our concerns about the cost and risk of self-referral—to both patients and providers—as policy proposals emerge.

As health care reform proposals emerge, the Board has prioritized efforts to: oppose increased privatization of the Medicare program that would result in an increased administrative burden for providers or that negatively impacts our patients; achieve consistent Medicare standards for supervision of support personnel across physical therapy practice settings; promote policy that embraces the use of physical therapists in private practice as timely evaluators and managers of quality of life for patients with chronic conditions; remove the barriers to patient access of physical therapists in private practice; and pursue repeal of the Independent Payment Advisory Board (IPAB), while opposing an increase to Medicare’s eligibility age.

Because legislation to reform and/or replace Obamacare is anticipated, the Board adopted priorities that focus on the following provisions of the health care law: promote physical therapy as an essential health benefit (EHB) in all insurance plans; retain guaranteed access to insurance for those with preexisting conditions as well as protect the ban on rescission for those who do have coverage; advocate to maintain requirements that children, up to age 26, are able to remain on their parents’ health insurance; and support consumer choice and shopping at the point of care through improved price transparency by health care providers.

Policy reforms are also expected to extend to the mechanics of health insurance and the insurance industry; therefore the Board adopted appropriate priorities to promote administrative simplification; address and mitigate the negative effects of market control by insurance plans and related entities on physical therapists in private practice and their patients; support policy that requires provider networks to be of the size, scope, geography, and expertise necessary to increase patient choice; oppose policies that unreasonably limit patient access and choice of physical therapist; support opportunities for consumers to purchase health insurance across state lines; and pursue elimination of arbitrary limits and denials for services provided by physical therapists in private practice in accordance with evidence of value.

Furthermore, your Board reiterated interest in legislation focused on small business issues such as support for legislation that allows small businesses to form groups for the purpose of purchasing health insurance for themselves and their employees; federal student loan repayment programs in underserved areas; as well as a mandate to monitor, respond to, and participate in tax reform efforts to benefit physical therapists in private practice.

As in years past, PPS will continue to promote policy that increases opportunities for veterans to receive outpatient services provided by physical therapists in private practice as well as support the APTA’s efforts to mandate that physical therapists in private practice are included in the medical team providing concussion management.

Regulatory
As mentioned earlier, Representative Tom Price, M.D. (R-GA), has been nominated to serve as the secretary of the Department of Health and Human Services (HHS). Before becoming a member of Congress, Dr. Price practiced as an orthopedic surgeon. This past Congress he served on the Ways and Means Committee and its Health Subcommittee and was chairman of the House Budget Committee. As stated previously, he was the lead sponsor of Medicare opt-out legislation in the House. He was also a vigorous proponent of physician self-referral and strongly opposed Medicare’s mandatory bundled payment initiatives for hip and knee replacements. As a vocal critic of the ACA, he played a leading role in Republican opposition to the law for the past six years and helped draft several bills to replace it. He has advocated changing Medicare from a “defined benefit” to a “defined contribution” program that would provide premium support (vouchers) to beneficiaries to buy their own private insurance policies. He has also been in favor of converting Medicaid into block grants to states. While he is eminently qualified for the position of secretary of HHS, with a deep understanding of federal policy and budgetary process, the positions he has taken in the past portend a bumpy road for several of PPS’s policy priorities.

Since the regulatory bodies of the government—namely, the Centers for Medicare & Medicaid Services (CMS)—propose and implement administrative rules that impact physical therapy, your PPS Board included a number of regulatory priorities in the advocacy directive for the 115th Congress. These include: monitor and respond to Medicare payment reform proposals, continue to fight for fair and equitable Medicare reimbursement for physical therapists in private practice, and promote the adoption by Accountable Care Organizations (ACOs) of quality measures that include functional health status. 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.

For example, comments are developed and submitted each year in response to regulations pertaining to the Medicare Physician Fee Schedule (MPFS). In the MPFS for 2017, a new system of tiered evaluation codes was established that corresponds to the complexity of the patient’s condition and how much time an evaluation will take. However, in the final rule, CMS decided to value—and thus reimburse—all three evaluation levels as a group, instead of individually, to reflect the level of complexity.³ Noting this, and CMS’s declaration that they plan to discuss the valuation of 10 “potentially mis-valued” codes in the 2018 MPFS update,⁴ the Board decided that we should monitor the implementation of the new evaluation codes and pursue appropriate values for each code. As we move forward, we will continue to advocate for payments that reflect the varied complexity that each code represents.

Conclusion
Each new Congress provides lawmakers with a clean slate from which to build or revise their policy priorities. Health care reform is likely to be a primary focus of both the legislative and executive branches of government. While many concepts have been suggested and campaign promises were made, specifics will emerge as the year progresses. Your lobbyists will stay abreast of proposals to reform Medicare, Medicaid, and health insurance regulations, as well as tax policies—all of which could impact the PPS membership.

Throughout the 115th 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 115th Congress as our guide when working with Congress and the administration on behalf of the Section and its members. In what could be a challenging political environment, we will continue to build on our bipartisan, bicameral efforts to identify and act on opportunities to advance PPS’s legislative and regulatory agenda. Since the voice of PPS members as constituents, business owners, and providers is a valuable part of our advocacy efforts, we will call on you as necessary and encourage you to be involved.

References

1. 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. 80391.

2. Ibid., p. 80392.

3. Ibid., p. 80334.

4. Ibid., 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.