Private Practice Physical Therapists’ Use of Locum Tenens Takes a Big Step

By Alpha Lillstrom and Jerry Connolly

August 8, 2015

This year Senators Charles Grassley (R-IA) and Robert Casey (D-PA) as well as Representatives Gus Bilirakis (R-FL) and Ben Ray Luján (D-NM) reintroduced the Prevent Interruptions to Therapy Act of 2015 (H.R.556/S.313) to authorize physical therapists to use the existing locum tenens provision of the Medicare statute so that their patients could be seen by a qualified substitute provider when the practice owner needed to be away for a short time. Adding physical therapists to this provision would allow the practice to bill and be paid for the care provided by the locum tenens therapist while helping to ensure that Medicare patients could continue their care without interruption during their physical therapist’s absence.

Simply put, this bill is a low-cost technical fix that would add physical therapists to the list of providers allowed to utilize locum tenens arrangements under Medicare (when all other conditions are met and within their same authorized scope of practice).

As Private Practice Section (PPS) members know from personal experience, there are times when a physical therapist practice owner must be away for a short time due to circumstances such as an illness, family emergency, professional development, jury duty, or the like. Under current law, physicians, osteopaths, dental surgeons, podiatrists, optometrists, and chiropractors can navigate these absences easily by entering into a locum tenens arrangement with a qualified substitute provider. Under these arrangements, the regular provider (the practice) bills and receives payments under Medicare Part B for the locum tenens professional’s services as if they had performed the services themselves. The locum tenens provider is compensated directly by the regular provider’s practice.

These arrangements are common, benefitting patients and providers alike. In rural areas especially, a locum tenens provider can serve patients who would either have to interrupt care or travel considerable distance to another provider. By hiring a qualified locum tenens provider, the regular therapist is able to ensure that there is no lapse in patient care and their Medicare patients’ appointments do not need to be canceled. Interruptions to a physical therapy treatment plan are known to impede a patient’s progress.

Even though physical therapists have practices similar to the other professions cited above, physical therapists are currently not allowed to use locum tenens because the Medicare law explicitly lists those professions to which this provision applies. Consequently, this policy flaw cannot be remedied through regulation—it must be corrected statutorily.

In December 2014, the PPS Government Affairs Committee and Board of Directors once again identified the passage of the locum tenens bill as a top legislative priority for the Section. In February 2015, we were joined by the American Physical Therapy Association (APTA) in hosting a Key Contact fly-in to advocate for the repeal of the sustainable growth rate (SGR) formula used to determine Medicare payment, a long-term remedy for the Medicare beneficiary therapy cap and support for the locum tenens legislation. Approximately 75 PPS members answered this call and flew in to Washington to lobby their senators and representatives. In June, APTA conducted a Hill Day where nearly 1,000 APTA members (112 of whom were PPS members) went to Capitol Hill asking their legislators to support issues of importance to the practice of physical therapy including the technical fix to the locum tenens provision (H.R.556/S.313). As of July 1st, 58 House members have cosponsored the bill and we have 25 cosponsors in the Senate. There were sizeable jumps in the number of legislators cosponsoring H.R.556 (22 added since June 4) and S.313 (13 added since June 4) following each of the physical therapy- (PT) sponsored Hill Days (see sidebar). All of you who participated in person or by contacting your members of Congress by phone or email are to be commended and should be very proud of your efforts. Your engagement has had a significant impact and has given this bill the much-needed support required to stay on the path to becoming law.

In May, the Senate Finance Committee began planning a package of low-cost, noncontroversial bills to debate in committee and bring to a vote. The sponsors of S.313 (Grassley and Casey) submitted the bill for consideration. Your lobbyists called on PPS members who have a senator on the Finance Committee to urge their senator to include S. 313 in this batch of bills to be “marked up.” It worked! The bill was included in the 12-item package.

We have long maintained that adding physical therapists (PTs) to the list of locum tenens providers carries no additional cost to the Medicare program because these patients are already accounted for in the Medicare system. In other words, this is not an authorization of new treatment or therapy that otherwise would not have been already requested, referred for, or initiated. However, in the process of determining the official cost for the bill, the Congressional Budget Office (CBO) raised questions about the utilization of locum tenens arrangements under current law. Despite our assertion that including physical therapists in the existing law would not result in increased utilization (and could possibly save money by expediting and not prolonging care), CBO decided the locum tenens bill had a “score” (CBO lingo for cost), which was just above the threshold for qualifying as low-cost for purposes of the Finance Committee’s planned mark-up. In order to make sure it still qualified under the budgetary restrictions established by the Committee, the bill’s sponsors worked with Senators Bob Menendez (D-NJ) and Tom Carper (D-DE) to limit the bill’s applicability to physical therapists practicing in Health Professional Shortage Areas (HPSAs), Medically Underserved Areas (MUAs), and rural areas (defined as non-Metropolitan Statistical Areas [non-MSA]) areas.

During the June 25 mark-up, Finance Committee Chairman Orrin Hatch (R-UT), ranking member Ron Wyden (D-OR), and Senators Grassley, Casey, and Menendez each spoke clearly about the importance of physical therapy as a profession as well as the importance of ensuring Medicare beneficiaries have access to physical therapy. The modified version of The Prevent Interruptions to Physical Therapy Act of 2015 passed the Senate Finance Committee unanimously on a voice vote. We are thrilled, and PPS members should be proud, that this milestone has been reached.

We were disappointed by the geographic limitations placed on the policy at this juncture. However, given the political and logistical reality, PPS leadership recognized that agreeing to those changes was the only way to keep the bill on the committee’s mark-up agenda. Nevertheless, we remain committed to restoring the policy to nationwide application as the need for locum tenens is not a rural versus urban issue. At its core, the need for locum tenens in physical therapy is a beneficiary issue, not about location but rather the size of the practice at which the Medicare patient chooses to receive treatment. It is incomplete policy to allow the rural (non-MSAs), MUAs, or HPSA-located practices to use locum tenens while a similarly sized practice located elsewhere is not allowed to do so—the impact on individual patients and providers is the same regardless of geographic location or population density. For example, with this restriction in place, a private practice physical therapist located in a metropolitan area who is a single parent would not be able to hire a qualified substitute when out of the office attending to a sick child, while someone in a rural area could do so and assure that the Medicare patient’s care was not interrupted.

Because we feel strongly that geographic and provider-density restrictions will leave out many private practice physical therapists with small practices in more populated areas, PPS is committed to working with Senators Grassley and Casey as well as the Finance Committee leadership and staff to urge CBO to revise its score. While this is no simple task, its achievement would enable us to restore nationwide applicability to the legislation in the Senate.

To this end, we have worked with Grassley and Casey to challenge the CBO cost estimate associated with this technical correction. Reportedly, part of the projection was based on an assumption of the development of a locum tenens “cottage industry” and the implication that this has occurred with physicians under current law. With our input, Grassley and Casey have sent a letter to the Centers for Medicare and Medicaid Services (CMS) asking for (1) any evidence that locum tenens, as used by participating Medicare practitioners under current law has resulted in an increase in utilization of services; (2) data supporting the supposition of the development of a locum tenens “cottage industry”; (3) any evidence of waste, fraud, or abuse in conjunction with using a locum tenens practitioner or if the agency has sufficient authority to properly respond should that take place; as well as (4) any evidence that benefits are not being used because physical therapists are not allowed to use locum tenens. Hopefully, the CMS response will enable us to challenge CBO’s scoring methodology and work to restore the scope of the Senate bill to all physical therapists.

Across the Capitol in the lower chamber, HR556 remains unrestricted and has nationwide application. We are working with committee staff to identify an opportunity to move this bill in an expedited manner similar to what was done in the Senate.

As mentioned, this legislation would not have achieved this attention and level of success had it not been for the willing and responsive engagement of PPS members. As we head into the August recess, we ask for your involvement once again, as this is the optimal time to reach out to your member of Congress while he or she is home to meet with constituents during the summer work period. There are many ways to engage your representative or senators to increase their understanding of physical therapy and its substantial contributions to patients—as well as the role you play in the community as a small business owner and employer. The best way to make this impression is to invite them to visit your practice. Reach out to their local office, introduce yourself to their staff, and offer to host both the legislator and/or staff for a clinic visit. Also inquire about town hall meetings or other public events so that you, your colleagues, and perhaps even some of your patients can attend. The member of Congress works for you and needs to learn from you, the expert, about how the policies they vote on affect you and your patients. Bringing the message “home” can have a profound impact on how they evaluate policy when back at their desks in Washington, D.C.

As is evidenced by the above-described progress on this one piece of legislation, your involvement can make a difference. Keep up the great work!

Alpha Lillstrom 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 1995–2001.