Progress Made on Behalf of Physical Therapists in Private Practice
By Alpha Lillstrom Cheng, JD, MA
The 116th Congress is a “divided Congress.”
This term refers to two significant, yet distinct, factors. First is that in the Senate, the majority of seats are held by Republicans, and therefore that party controls the efforts of that chamber, whereas in the House of Representatives, Democrats are in the majority and therefore control the policy agenda. The other aspect of that moniker is the current political climate—this is a “divided Congress” because much of the legislators’ attention has been focused on divisive political pursuits instead of policy priorities.
Despite those hurdles, we have made some progress on the goal of changing or updating laws to be more favorable to private practice physical therapists and in line with the priorities laid out in PPS’s Legislative and Advocacy Priorities. We’ve had legislation updated and introduced to address private contracting with Medicare patients; coverage and payment for physical therapist services provided via telehealth; the cost of education through federal programs that reduce student loan burden; removing physical therapy from the in-office ancillary services exception; as well as expanding access to locum tenens providers to all private practice physical therapists.
Legislative Activity
Addressing Student Loan Burden through Placement in Health Professional Shortage Areas
The bipartisan Physical Therapist Workforce and Patient Access Act of 2019 (S.970/H.R.2802) seeks to include physical therapists in the National Health Service Corps (NHSC) Loan Repayment Program. The NHSC addresses the health needs of more than 11.4 million underserved individuals by placing certain health care professionals in areas designated as a health care professional shortage area (HPSA). Eligible health professionals are provided up to $50,000 in exchange for serving at least two years in these areas.
In pursuit of this legislation, we remind lawmakers that physical therapists have a significant impact on their patients’ quality of life and ability to work in their communities, while also playing an important role in the management of chronic disease and conditions such as diabetes, stroke, and obesity. We point out that adding physical therapists to the NHSC will also ensure that more individuals would have access to nonpharmacological options for the prevention, treatment, and management of pain. Through our efforts, policymakers are reminded that physical therapy is an essential component of the undertaking that is necessary to improve both patient outcomes and alter the trajectory of the current opioid crisis.
Enabling Physical Therapists to Privately Contract with Medicare Beneficiaries
One of PPS’s top priorities is to enable physical therapists to opt out of Medicare on a case-by-case basis. The Medicare Patient Empowerment Act (S.2812) would achieve this by permitting direct contracting between Medicare beneficiaries and qualified health professionals. Instead of simply adding physical therapists to the list of providers able to opt out of the program completely, S.2812 seeks to allow a Medicare beneficiary to enter into a contract with an eligible professional (regardless of whether he or she is a participating or nonparticipating physician or practitioner) for any item or service covered by Medicare. The bill also allows those beneficiaries the option of either paying for the service themselves or to be reimbursed by Medicare for the amount it would be paid if the professional were a participating practitioner. This patient-centered bill allows the Medicare beneficiary to receive care from any provider and to pay either the Medicare rate or a rate that is agreed upon between the patient and their chosen provider. This empowers individual beneficiaries at no additional cost to the Medicare program. In fact, every time a patient opts to not bill Medicare, it saves the program money.
Some patient advocates are concerned that this legislation will erode beneficiary protections at the heart of the Medicare program. However, the Section is confident that these concerns are addressed in a number of ways. First, the Act prohibits entering into a contract at a time when the Medicare beneficiary is facing a medical emergency or urgent health care situation. Second, by creating a system where only those patients who want to opt out of using their Medicare coverage for a particular provider and visit are impacted, all other patients interested in using their Medicare benefits with that provider are assured continued access to their local, community-based physical therapist.
Mitigating the Impact of Physician Self-Referral
The goal of H.R.2143, the Promoting Integrity in Medicare Act, is to remove physical therapy from the in-office ancillary services exception (IOASE) of the prohibition on physician self-referral in the Stark Law. Current law bars physicians from referring Medicare patients to health care services or to providers in which they have a financial interest, with certain exceptions. As you know, the IOASE was originally created to allow physicians to render noncomplex services like x-rays and simple blood tests in their offices during the same patient office visit. The exception was never intended to include services rarely provided at the time of the patient’s initial office visit.
H.R.2143 restores the original intent of the self-referral law and will ensure that beneficiaries are free to choose their provider and that incentives driving medical decisions are based solely on patients’ best interests, thereby reducing unnecessary and inappropriate services and costs to Medicare.
Nationwide Access to a Locum Tenens When You Need to Be Away from Your Practice
The locum tenens arrangement is a longstanding and widespread practice used by eligible providers to hire qualified substitutes for up to 60 days when they are unable to see patients due to illness, pregnancy, jury duty, vacation, or continuing medical education. The physician and practice-of-record bills and receives payment for the substitute clinician’s services, and in turn they pay their locum tenens for services on a per diem or similar fee-for-time basis.
As of June 13, 2017, private practice physical therapists practicing in designated Health Professional Shortage Areas, medically underserved and rural areas, have been permitted to retain a substitute physical therapist when they need to be absent from their clinic. The Centers for Medicare and Medicaid Services (CMS) has reported that, “For calendar year 2018, there were 219 physical therapists in private practice who billed substitute services . . . There were 2,465 beneficiaries receiving such services from these substitute therapists, totaling $935,495 in Medicare allowed charges.” When a patient is seen by a locum tenens provider, they are simply using their existing Medicare benefits and no additional benefit is conferred upon them, nor is there an actual increase in spending for that specific patient; however, for the purposes of providing an estimated expenditure, the Congressional Budget Office (CBO) catalogues the cost of the care provided by the substitute therapist as a separate line-item. Using the data from CMS, we can extrapolate the need for locum tenens physical therapists nationwide while also showing that even using the CBO accounting rules, there will not be a significant cost attached to legislation expanding this policy to all private practice physical therapists.
While the previous bill focused on geographic regions with fewer private practice physical therapists, that did not get to the heart of the issue, because the need to use a locum tenens in order to prevent an interruption in care is based on how many credentialed providers a clinic has and its Medicare patient mix—not the location of that practice. PPS is working on legislation to enable all physical therapists to utilize locum tenens arrangements under Medicare.
Providing Physical Therapy Care Using Telehealth
Even though CMS has concluded that telehealth provides opportunities to care for Medicare enrollees, legislation is needed in order to ensure that Medicare will pay for these services. One of the primary stumbling blocks is that lawmakers find it hard to understand how physical therapy can be provided via telehealth—instead, they think that because it is “physical,” that all therapy must be hands on and provided in person. To combat this, we remind policymakers that a standard physical therapy plan of care includes both manual therapy and therapeutic exercise. We also explain that while the use of telehealth would not eliminate the need for in-person visits it would increase access to distant providers, reduce cancellations due to weather and transportation challenges, and enhance both the delivery and coordination of care. Finally, we make sure members of Congress understand that by providing assessments, care, and interventions via telehealth, physical therapists could prevent falls, reduce functional decline, avoid costly emergency room visits, and reduce hospital admissions as well as readmissions.
According to a 2019 survey of PPS members, a large number of members are interested in providing care via telehealth. Some have already begun on a cash-pay basis, but many are eager for Medicare to cover this type of care. In April 2019, PPS provided robust feedback to the Congressional Telehealth Caucus suggesting ways in which physical therapists could utilize telehealth to provide quality care and prevent falls and other physical setbacks. In October 2019, we supported the introduction of the CONNECT for Health Act of 2019 (H.R.4932/S.2741), which seeks to expand access, promote cost savings, and ensure quality care in Medicare through the use of telehealth and remote patient monitoring.
Among other things, the CONNECT for Health Act seeks to allow Medicare-enrolled providers or suppliers to be reimbursed for care provided via telehealth when certain quality and cost-effectiveness criteria are met. This would enable Medicare-enrolled physical therapists to furnish some telehealth services to Medicare beneficiaries. The bill also seeks to authorize CMS’s Center for Medicare and Medicaid Innovation (CMMI) model to allow physical therapists and other health professionals to furnish telehealth services.
Crystal Ball
While we have achieved the introduction of legislation to address many of our top concerns, it is not guaranteed that these policies will be achieved before the end of the 116th Congress in December 2020. The House of Representatives and the Senate work independently of one another and are under no Constitutional obligation to take up bills passed by the other chamber. Identical bills need to pass both chambers before being sent to the president’s desk to become law; while this is always a significant challenge, it is even more so in this divided Congress. Furthermore, legislation that impacts physical therapy is often in the form of narrowly tailored, niche bills. As a result, they don’t often get passed as stand-alone bills but instead are placed into “vehicles” or larger pieces of legislation that are moving toward consideration by the full legislative body. Examples of this include the therapy cap repeal, which was part of the Bipartisan Budget Act of 2018, and the previous locum tenens bill that was included in the larger 21st Century Cures package that became law.
However, of the legislative efforts discussed in this article, some have a better chance than others of achieving strong bipartisan support and ideally passage into law before the end of the year. The leaders of the CONNECT for Health Act intentionally introduced a bill that was made up of distinct, independent components that can be plucked out of the bill and inserted into legislative packages that are going to be considered by the full chamber. This format provides a better chance of a provision that would impact coverage of physical therapist–provided telehealth services becoming law. In fact, four provisions of previous CONNECT for Health legislation became law following this pattern.
The bipartisan Physical Therapist Workforce and Patient Access Act has gained significantly more cosponsors this Congress than it did last Congress, so we are working to maintain that momentum and support. The biggest challenge is that while the bill does not have a cost, lawmakers are concerned that adding additional providers to the program would result in internal competition that might not best support the goals of the program. On the flip side, if we were to advocate for additional funding for the program, we would face a separate challenge of how to fund the increased cost.
Some of PPS’s legislative priorities are supported predominantly by one party or the other. A prime example is H.R.2143, which seeks to remove physical therapists from the IOASE; it is supported exclusively by Democrats. While this bill attempts to reduce waste and increase patient choice, since its initial introduction many years ago it has only been able to achieve support from Democrats; therefore, we do not anticipate that it will be considered in the Senate this Congress. On the other side of the aisle, there is exclusively Republican support for S.2812, which would modify Medicare’s opt-out policy to allow for private contracting between providers and Medicare beneficiaries. Until these policies garner support from members of the other party, they have little to no chance for success.
What Can You Do?
Effective advocacy comes in many forms, one of which is sharing examples of how existing policy limits your ability to provide the best care for your patients. Anecdotes can vividly illustrate to policymakers why they need to act to improve conditions for their constituents—both your patients and you as a small business owner and community-based provider. Please share with me your stories that explain how any of the policy changes we are seeking (using telehealth, access to a locum tenens provider, the ability to opt out of Medicare for a specific patient, or if your patients have been told that they must use their doctor’s in-house physical therapist, to name a few) would impact you or your practice.
Check the PPS Legislative Blog at the end of each month for updates on legislation as well as opportunities and tools for reaching out to your lawmakers asking for their support on specific issues. Finally, if you are a current PPS Key Contact, thank you for your continued engagement and advocacy. If not, please consider joining the team; reach out to see if there is a vacancy in your district.
Conclusion
The continued engagement of PPS members with their lawmakers both bolsters and increases the impact of your lobbyist’s conversations with legislators. Not only are you a constituent, but you are also a small business owner and an influential member of the community. In an election year, members of Congress are ever more focused on pleasing those who decide whether or not they keep their jobs. Take advantage of this fertile opportunity to not only teach them about the value of physical therapy but also remind them of the bills they could cosponsor in order to support you, your business, and their constituents who you provide physical therapy services to. It is the cumulative effect of each meeting, each connection, and each conversation that allows us to make progress on our issues.
Alpha Lillstrom Cheng, JD, MA, is a registered federal lobbyist and a principal in the firm Lillstrom Cheng Connolly, which has been retained by PPS. An attorney by training, she provides guidance to companies, nonprofit organizations, and political campaigns.