New Congress. New Administration. New Opportunities.
By Alpha Lillstrom Cheng, JD, MA
2021 is a year that is burdened with a lot of expectations.
While the coronavirus public health emergency has been extended to at least April 2021, Americans are stir-crazy for it to be a distant memory and to settle into a new normal. Private practice physical therapists are eager to recover from the devastating economic impact of COVID-19 and pursue opportunities for better payment and policies that will support their small businesses and the communities they serve.
Democrats have returned to preside over the White House and the Executive branch with Joe Biden as president, bringing with him a very different perspective for how to approach federal policy. Additionally, this 117th Congress got off to a very turbulent start and is a mix of old-guard and new-to-Washington, DC lawmakers who are each seeking to make an impact through legislation in their own way.
117th Congress (January 2021-January 2023)
As you may know, legislation does not carry over from one Congress to the next. Each time a new Congress begins, the legislative process starts anew. In addition to the possibility of many new bills, all bills that are still a priority for lawmakers and stakeholders 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 advocate for legislators to cosponsor legislation that they had supported in the past, while also reaching out to new Members of Congress. Our strong Key Contact program is just one of many ways we make sure to engage with and educate lawmakers about the Section’s policy priorities — especially for newly elected Members of Congress who may not be familiar with the value of physical therapy and the issues the Section’s members face. You will see new bill numbers and hopefully a growing list of cosponsors on relevant bills this Congress as we make our way through this two-year legislative term.
While the Democrats are in the majority in both the House and Senate for the 117th Congress, their majorities are narrow; combined with the divisive nature of the 2020 Presidential election, the culture of partisanship is likely to remain — possibly even more magnified. It is also likely that, because of the historic level of federal spending in 2020 for the multiple COVID-19 relief packages, and proposals by President Biden for additional COVID-related spending, many lawmakers — and not just those who are traditionally fiscally conservative—will be looking for policies that will provide the “biggest bang for the buck.” Furthermore, in order for legislation to achieve passage in the Senate it must have broad appeal and receive at least 60 votes in order to move past the filibuster threshold. Therefore, legislation with the best chance of passage during the 117th Congress will be policies that address issues that are a priority for both Republicans and Democrats, with a particular focus on those that are not extremely costly.
The following issues are likely to be part of the agenda for both Members of Congress and our members:
- Pursuing a long-term plan of how to permanently mitigate the cut to rehabilitation therapy and its impact on the economic viability of clinics as well as patient access to care.
- Building off the data that proved the value of using telehealth to provide physical therapy services during the pandemic to argue why physical therapists should be permanently added to the list of providers who are paid for providing services to Medicare beneficiaries using telehealth.
- Rebuilding and supporting small businesses as they recover from the economic impact of the public health emergency.
- Responding to the U.S. Supreme Court’s decision on the Affordable Care Act (ACA), which is expected to be released late June 2021.
Democrats retained the majority in the House of Representatives for the 117th Congress, having met the threshold of holding more than 218 of the 435 seats. However, their majority has shrunk significantly.
The rosters of the House committees change at the beginning of each new Congress due to retirements, the losses of incumbents, and returning lawmakers who are eager to be seated on more prestigious committees. Each party decides the committee assignments of the members of their party. It is common for returning Members of Congress to ascend to prime committee placements and for newer lawmakers to be placed in the less prestigious committees or be seated on a committee that is focused on a primary issue that impacts the district they represent. There are at least 10 new members of the House Energy & Commerce Committee (including at least seven on the Health Subcommittee). Rep. Cathy McMorris Rodgers (R-Washington), who has been a member of Republican leadership since 2012, is now the Ranking Member of the Energy & Commerce Committee. The House Ways & Means Committee leadership has stayed the same, but it has welcomed a number of new members to the committee. Two previous members of the House Small Business Committee lost their elections and so that committee roster has also changed.
Fifty Republicans are serving in the U.S. Senate. As a result of the run-off elections for both of the Georgia Senate seats, there are also 50 members of the Senate affiliated with the Democrats (48 Democrats plus Senators Angus King (Maine) and Bernie Sanders (Vermont) who are Independents but caucus with the Democrats). The ascension of Sen. Kamala Harris to the position of Vice President has given Democrats the tie-breaking vote and the slight edge, giving Democrats the Senate majority. Sen. Chuck Schumer of New York is the Majority Leader and Sen. Mitch McConnell of Kentucky is the Minority Leader.
Sen. Ron Wyden of Oregon has returned to the position of Chair of the Senate Finance Committee after four years as the Ranking Member. The Republican conference has their own internal rules which limits how long an individual can be at the top spot on a committee, so Sen. Chuck Grassley has moved to Chair a different committee; Sen. Mike Crapo of Idaho is now the Ranking Member of the Finance Committee. Sen. Patty Murray of Washington has returned to the post of Chair of the Senate Health Education Labor and Pensions (HELP) Committee and as of this writing the Ranking Member position is expected to be Sen. Richard Burr of North Carolina.
With President Joe Biden at the helm, the political affiliation of the White House has swung to the left. Because Democrats hold such slim majorities in Congress, it will not be possible to pass partisan legislation that is favored only by the left; therefore, for policies which cannot garner bipartisan support in the legislative branch, the President will likely pursue using Executive Orders and rulemaking to achieve his (and his political party’s) policy goals — to the full extent of his regulatory authority.
For the Department of Health and Human Services (HHS), President Biden has tapped former Congressman Xavier Becerra of California to lead that department. When in Congress, Becerra sat on the powerful House Ways & Means Committee, was responsive to the value of physical therapy, and cosponsored legislation to repeal the therapy cap. In his most recent role as Attorney General of California, he led the coalition of Attorneys General from 17 states seeking to defend the ACA in the case that is currently with the Supreme Court. It is expected that he will also focus the Agency’s efforts on addressing health disparities, as well as coverage for and access to preventive care. It is likely that a number of regulatory changes proposed by HHS and the Centers for Medicare and Medicaid (CMS) will align with his political philosophy and reflect his and President Biden’s strong history of championing the ACA. A few things that are likely to be on the top of HHS’ agenda:
- Shoring up and reviving efforts in support of the ACA and its goal of providing access to affordable healthcare (for instance, by restoring spending on outreach and assistance for enrollment in Marketplace-based plans);
- Establishing a special enrollment period (e.g., during the COVID-19 pandemic) for people to be able to sign up for ACA coverage outside of the existing qualifying life event parameters;
- Reevaluating what to do about the short-term limited-duration health plans that were expanded under President Trump (which extended the duration of the short-term plans to a full year and allowed those plans to be renewed for up to three years). These short-term plans are not subject to the ACA’s rules that require coverage of preexisting conditions and nor are they required to cover essential health benefits. While the Biden administration is likely to want to roll-back the Trump-era regulation, about 3 million Americans are currently enrolled in a short-term plan so a replacement or access to alternative (with similar cost to the consumer) would have to be readily available in order to avoid a significant dip in coverage rates;
- Reevaluating the Merit-Based Incentive Payment System (MIPS) and the plan of moving towards MIPS Value Pathways (MVPs); and
- Rolling back the previous administration’s efforts to encourage states to adopt work requirements for Medicaid.
Updated Legislative and Advocacy Priorities
In preparation for each new Congress, the Government Affairs Committee (GAC) meets to evaluate the section’s Legislative and Advocacy Priorities and determine the policy issues and goals which are to be the Section’s priority for the next Congress. In early December 2020, the GAC and many members of the Board met for two days to discuss and evaluate which issues should be at the forefront of the Section’s advocacy efforts. Some issues remained the same but, applying the lens of the change in Administration and the incoming Congressional makeup while evaluating issues which are ripening, a few changes were made. Permanently mitigating the drastic cut of payment to physical therapist services instituted by the 2021 Medicare Physician Fee Schedule is clearly the highest priority for our advocacy efforts. Check out the advocacy page of the Section’s website for the rest of the Legislative and Advocacy priorities for the 117th Congress.
Each new Congress provides legislators with a clean slate from which to build or revise their policy priorities. The policy priorities of President Biden and his administration are going to be rather different than those championed by President Trump. As your lobbyist, in addition to advocating for the policy priorities of the Section, I will stay abreast of proposals to reform Medicare policy, coverage of telehealth, small business issues, as well as tax policies—all of which could impact section members. While pursuing these priorities I will also work to ensure that Members of Congress consider physical therapists to be 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.
Throughout the 117th Congress, I will invite you as provider-advocate to join me in support of proposals that could improve business opportunities and provide support for private practice physical therapists as well as efforts to remove barriers to patient access. The legislative and regulatory advocacy priorities for the 117th Congress will be our guide when working with Congress and the administration on behalf of the Section and its members. In what will be a challenging political environment, we will continue to build upon our bipartisan, bicameral efforts to identify and act on opportunities to advance the section’s legislative and regulatory agenda. Since the voice of section members as constituents, business owners, and health care providers is a valuable part of our advocacy efforts, I will call upon you as necessary and encourage you to be involved.
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.