To Be Continued
The “Locum Tenens” advocacy journey.
By Jerome Connolly, PT, CAE
Achieving advocacy success is not easy. There are no quick fixes. Even a small technical correction to an existing law requires a good deal of effort and a similar degree of endurance.
Of course, when you think about it rationally, passing a law should not be easy. One can only imagine the chaos we would have if opposing factions were able to easily pass contradictory statutes.
An example of persistence in the advocacy arena is the PPS legislative priority of adding physical therapists to the list of professionals allowed to use locum tenens under Medicare. This small technical correction to the federal statute is requiring a sizeable and sustained effort by stakeholders; an effort that is and must be comprehensive and continual.
The locum tenens issue was identified by the PPS Board and Government Affairs Committee (GAC), with membership input at least five years ago when I was brought on as your lobbyist. The Board and GAC elevated the issue to a legislative priority during its advocacy strategic planning session after the 2012 elections and in advance of the convening of the 113th Congress in January of 2013. Subsequent lobbying efforts were developed to tackle the issue.
The locum tenens provision of the Medicare law was last substantially modified in 1972, and the six professions allowed to engage qualified substitute practitioners and have the practice bill Medicare for these services was limited to physicians, osteopaths, podiatrists, optometrists, dental surgeons, and chiropractors. Of course in 1972, adding physical therapists to the list was not the important and essential priority it is today.
In deciding to pursue this advocacy goal, the section had to develop the background and describe the issue. This included communication with the Centers for Medicare and Medicaid Services (CMS), which had been accomplished by APTA at least twice in meetings with the Agency over a period of years. CMS confirmed what the profession knew: This provision was law and could not be altered by regulation or new interpretation. The change we sought could only be accomplished by passing legislation.
So, with the locum tenens issue as a priority, the appropriate change to the specific legislative provision was developed and a lobbying plan and materials explaining the measure were created.
We communicated with other affected professions who might be interested in being added to the list of locum tenens providers and found that speech-language pathologists and occupational therapists did not consider the issue a priority for them. Likewise, nurse practitioners were contacted and showed no interest.
Education of legislators’ offices commenced and after more than a year of lobbying, a representative finally agreed to take up the issue. This occurrence was not just a random event or “luck of the draw.” Several years of developing a personal and supportive relationship with Rep. Ben Ray Lujan (D-NM) by an astute and dedicated APTA staff member contributed to the congressman’s decision to seek this legislative change for physical therapists. Next, because of our strong desire to demonstrate bipartisan support for this measure, Rep. Lujan helped identify a congressman from the other side of the aisle who might be interested in partnering in the legislative effort. Involving a multiple front approach, including the use of the PPS Key Contact Program, the support of Rep. Gus Bilirakis (R-FL) was secured. This move was as strategic as it was important because both Bilirakis and Lujan sit on the House Energy and Commerce Committee, which has some jurisdiction over outpatient physical therapy issues.
When House Resolution (HR) 3426 was introduced in July 2013, PPS activated its network and its key contacts. We urged our grassroots members to write their legislators, explaining the need for this change and using examples of the hardships experienced by patients and practitioners as a result of existing law.
Fourteen months later, we were successful in having a companion bill introduced in the Senate. This involved a great deal of time and effort contacting and educating Senate offices. A stark and egregious example of the negative effects of the existing law was repeatedly used to garner the interest of Sen. Charles Grassley (R-IA). However, a senator’s interest alone is not always sufficient to result in the introduction of legislation. Given any policymaker’s limited “bandwidth”—that is, since there is a limit on the number of issues a single elected official can handle at any one time—they must be selective. Personal contact with staff and the senator pays dividends in these situations. Repeated visits to Senate offices in Washington and at home were instrumental in elevating the locum tenens issue to a level of actionable interest in the offices of Senators Grassley, Robert Casey (D-PA), and Jerry Moran (R-KS). Both Grassley and Casey are members of the Senate Finance Committee, which has jurisdiction over Medicare issues—another strategic outcome.
Just as HR 3426 was introduced in close proximity to the first PPS Advocacy Fly-in (held in July of 2013), S. 2818 was put in the Senate hopper in September, just prior to a PPS key contact training conference that included visits to Senate and Congressional offices. PPS convened 74 of its key contacts to learn the importance and “how-to’s” of establishing valued ongoing relationships with key members of the House and Senate. (See sidebar for more information on the growing PPS Key Contact Program).
Meantime, a rare regulatory development complicated the issue when CMS surprisingly solicited comments on physician use of locum tenens, suggesting that the agency might be interested in seeking tighter controls to curb potential fraud and abuse. PPS and APTA analyzed the call for comments and strategically responded, urging CMS to create greater parity in applying the policy and to seek legislative changes that would allow physical therapists to use locum tenens. We also suggested specific strategies CMS could employ to ensure that fraud and abuse are not issues associated with locum tenens. (The PPS comment letter is available on the section website at www.ppsapta.org.)
Physical therapists in private practice (PTPPs) are in a unique situation with Medicare that is complicated by our inability to use the locum tenens statute in the same way physicians are allowed. The Medicare enrollment process for PTPPs is lengthy, time consuming, and often expensive. It is not uncommon for three months to elapse before the enrollment process is successfully navigated. Moreover, Medicare enrollment requires a site visit when changes are made to Medicare-enrolled physical therapists associated with a practice. In addition, if no patients are seen by that therapist in a given year, the enrollment expires and must be undertaken again. Neither Medicare enrollment nor the site visit is required for physicians who are used under locum tenens authority allowed by Medicare law.
Obviously, because of the typical three months or longer processing time, current policy is not a practical solution to an unplanned emergency short-term leave such as a family emergency, an illness, or jury duty.
Even maternity leave, a common reason for bringing in a qualified substitute physical therapist, can present difficulties under existing law. Strict compliance requires the substitute physical therapist to have a Medicare national provider identifier (NPI) and be enrolled as a Medicare physical therapist (by completing and filing the requisite 855 Forms). In addition, the practice must wait for a site visit. In seeking coverage for maternity leave, there may be sufficient time to file the required Medicare applications and obtain the site visit, but the specific physical therapist who will see Medicare patients during that absence must be so processed. This means that arranging for a substitute clinician via a “traveling therapist” company is not an easy fix as companies have indicated that it is not possible to identify the precise physical therapist who will be available at the needed time. Also, it is not possible, they tell us, to guarantee that the same physical will be the substitute for the duration of the maternity leave.
For the remainder of this year, our charge is to build support in the House for HR 3426 and in the Senate for S. 2818 and look for an appropriate legislative vehicle; for example, Medicare legislation to which this measure can be attached. (In Congress, it is rare for a small bill to move independently). Because the next expected Medicare legislation will address the March 31st expiration of the Medicare payment formula and the therapy caps exception process, a Medicare vehicle is not likely this year. If one does emerge, it will do so in the lame duck session after the elections. No Medicare legislation this year means we will need to start again in the 114th Congress to introduce a bill and gather support for adding physical therapists to the list of providers allowed to use locum tenens in Medicare. We plan and are prepared to reintroduce the Prevent Interruptions in Physical Therapy Act in 2015.
Locum tenens is proof that even a small issue affecting a small number of Medicare beneficiaries and an even fewer number of physical therapists requires a sustained strategy. Readers of this column are aware of my fondness for saying this advocacy business “is a marathon, not a sprint.” And while we have mileposts and benchmarks to point to on this journey that provide positive reinforcement for our efforts to date, we also recognize that the road ahead is long. Our ultimate success will depend on our ability to persist, convince, and relate. That is, persist in our efforts on this issue despite setbacks or competition from other important or emerging issues; convince the policymakers of the wisdom of taking this action, its importance to our patients and our practices; and most importantly by relating to our legislators on a regular basis and establishing that all-important rapport of trust and confidence.
And, of course PPS has more than one advocacy goal, so the above-described effort must be replicated for each of our priorities. Ongoing, strong, sustained relationships are the keys to our advocacy success. Yes, it is a marathon, not a sprint.
In a Year’s Time
PPS has signed up over 100 members to serve as key contacts for target legislators. This is a commendable achievement and a testimony to the section members’ dedication to advocacy. However, 50 percent of our important target legislators are still lacking a PPS key contact. Target legislators are those in leadership positions and members of key committees that have jurisdiction over issues of importance to private practice physical therapists and their patients. To find out if your representative or either of your senators is in need of a key contact, contact PPS headquarters. Yours could be the vital connection that helps PPS succeed on any aspect of its advocacy plan.
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.