MEDICARE THERAPY CAP REPEAL: PIPE DREAM OR PROFESSIONAL RESPONSIBILITY

(Disclaimer: Of the TMN staff, I was voted most likely to binge the West Wing and marathon watch C-SPAN. Thus if this post seems a little heavy on the politics I’m sorry- I’ll circle back to PT in the end.)

In 1999 a limit on Therapy covered under Medicare part B took effect following the signing of the 1997 Balanced Budget Amendment into law. Ever since it has never taken long for a discussion to break out out on the DPT students FB group on the origin of the oxford comma, the impact that the Medicare cap has on patients and a reminder to take part in the latest #PTadvocacy campaign.

Last November, House and Senate committees along with representatives of the organizations impacted by the Cap, announced agreements on language for a permanent therapy cap fix as well as offsets to finance them.
Despite these optimistic announcements, and a strong grassroots advocacy campaign led by the APTA, Congress recessed before enacting a fix before the deadline. Thus on Jan. 1, 2018 the exceptions process expired and the hard cap went into effect. Many had hoped that a fix would be included in a budget deal before Jan 19th. Unfortunately, neither a cap fix nor a budget deal was reached.

Should we be surprised by where we are today?
The Medicare Access to Rehabilitation Services act of 2017, or S.253 the Senate bill which repeals the medicare outpatient therapy cap was analyzed by information and analytics firm Skopos labs. Their analysis which can be found for this and other bills at Govtrack.us, estimated the likelihood of enactment into law at 1%. They stated that enactment of the bill is unlikely but portions could become law. The House version, H.R. 807 was estimated to have a 6% chance of becoming law.

As of September 2017, PT-PAC, (Physical Therapy Political Action Committee) was 7th on the list of top 10 most influential healthcare provider PACs in terms of candidate contributions. We are behind the American Medical Association, Orthopedic Surgeons, Dentists, Anaesthesiologists, Emergency Physicians, and Optometrists. It’s hard to objectively compare the lobbying power of each of these organizations- especially since the physicians groups have been occupied by defending the Affordable Care Act from repeal. For comparison one of AMA’s legislative priorities for 2017, H.R. 1156: Patient Access to Higher Quality Health Care Act of 2017, which essentially reverses self referral restrictions which prohibit physicians from owning their own hospitals was estimated to have a 10% chance of enactment into law.

What does this mean for our patients, and what does it mean for our profession?
We know the talking points. The therapy cap arbitrarily affects our most vulnerable clients. Patients with comorbidities and complex conditions require more therapy. In instances where speech-language pathology services are also utilized, an even split leaves only $1005/ year for PT. After CVA, patients need more than 10 outpatient visits to achieve a modicum of functional return, let alone allow for additional therapy to manage additional complications or issues that may occur throughout the year such as back or knee pain.
That’s the impact that potentially awaits some 1 million Medicare beneficiaries. An American Health Care Association analysis of Medicare claims from 2015 indicates that 286,000 (37 percent) of beneficiaries receiving SNF physical therapy (PT)/speech-languagepathology (SLP) services surpass the cap, while 161,000 (31 percent) surpass the occupational therapy (OT) cap.

Aside from the moral and ethical ramifications, does the cap have an economic impact on the profession? Does the cap result in significant or meaningful loss of clinic revenue?
CMS guidance indicates that the KX modifier for medically necessary care beyond the cap limit will continue for outpatient care provided in hospital settings. Because of the exception in place for hospital OP services, patient demographics may be significantly skewed to favor complex patients in these settings. If patients are only able to access to private clinics in their area, they could be out of luck.

This moment, hard cap in place, represents an opportunity.

We could decide that the Medicare therapy cap is neither the end of the world nor an existential crisis for Physical Therapy, or upon reflection we may conclude that our professional responsibility is to ensure that all our patients are able to access therapy without the arbitrary limits imposed by a firm Medicare cap.

As I reflect on the medicare therapy cap and the work that my friends and mentors have undertaken to repeal it, I have more questions than answers. Some of these questions likely have answers that can be researched and found, but others will require deeper discussion on the part of the profession and Association.

How much has the APTA and its members invested, dealing with the cap, and trying to repeal it?
Would that have been energy better spent elsewhere?
How much do members advocate?
How prevalent is advocacy fatigue or burnout?
Can the members be pushed harder? Do we need more coordinated campaigns? Would everyone benefit from increased “honest communication” regarding the status of these bills, or is a “positive spin” necessary and helpful to keep members engaged?

The Medicare Therapy Cap is Not a National Issue
Ultimately, the Medicare therapy cap is not an issue of national concern. When was the last time Washington Post, USA Today, NY Times, or CNN covered the Medicare Therapy Cap? Hint; they haven’t and I’ve checked many, many times. Recently a piece written by Margaret Danilovich PT, PhD appeared in The Hill: Remove the Cap on Medicare therapy services- It could save lives. That’s as close as we’ve come to mainstream media. The cap has been covered in health care specific publications such as The Provider: Fate of Therapy Caps Awaits Congressional Action, but that’s about it. Not even my beloved Kaiser Health News is covering it.

Of the major public opinion polling firms; Gallup, Rassmussen, and Reuters, no one has ever polled the Medicare Therapy Cap. These firms are asking voters and taxpayers their opinions about airplane travel, the #MeToo movement, opioids, and chiropractic, but no one is asking what people think about the therapy cap. We need to admit that only a small percentage of APTA members, and an even smaller percentage of Medicare patients actually care about it. APTA’s legislative strategy of utilizing larger, more priority legislation as vehicles to bring the medicare therapy cap issue to the floor seems to acknowledge and account for this.
A public opinion poll could be helpful for a couple of reasons:
1. Legitimize and strengthen current advocacy efforts. If Legislators were presented with clear data indicating the therapy cap had broad national support it would be harder to put off and ignore rather than when only a few thousand PTs call, meet, email, or tweet them.
2. Enhance public relations and media outreach. Mainstream media writes stories that have broad interest and are not merely of isolated organizational significance. With respected polling data about the cap more media might be enticed to cover and thereby promote the issue.

3. Track progress. Where were we 5 years ago? 10 years ago? Do we know? We know how many cosponsors each bill gets each legislative session, but other than that we have very limited means of assessing the effectiveness of our advocacy.

APTA has stated that they believe good progress has been and continues to be made on a permanent therapy cap repeal.
In 2015, the Medicare Access and Chip Reauthorization Act came before Congress and was ultimately passed. During the debate process an amendment to repeal the medicare therapy cap was introduced. That amendment failed by 2 votes (only 58 yes votes were had while 60 were needed). This was the first time a full vote was held on the cap’s repeal. As a result the final bill that was voted on and passed did not include the therapy cap repeal, but the continuation of the exceptions process.
It is difficult to extrapolate what the true level of political support for an issue is based on an amendment vote alone. It is common for many amendments to be voted on, before a vote is called for the final version of a bill.Amendments can have different levels of genuineness or political motive to them. For instance, the spending bill which funded the government before it shutdown on Jan. 20th, was actually an amendment attached to a bill dealing with the Department of Homeland Security: An Act to amend the Homeland Security Act of 2002 to require the Secretary of Homeland Security to issue Department of Homeland Security-wide guidance and develop training programs as part of the Department of Homeland Security Blue Campaign, and for other purposes.

Conversely, last August during the Affordable Care Act repeal debate, one of my state’s senators introduced a medicare for all amendment. This senator is a loyal to party, conservative Republican and doesn’t believe in Medicare for all. He only introduced the bill to try to divide the Democratic party. In other words sometimes an amendment is the real meat and potatoes of legislation, and other times they’re just part of the political theater. Sometimes it can be hard to tell the difference.

All that being said, we have no reason to suspect that the Therapy Cap repeal amendment was a dummy or red-herring vote, but at the same time we don’t know how the vote would would have gone even if Cap repeal had been included in the final bill. We assume that the pressures of passing a final bill would have ensured passage, but ultimately that is an assumption. All we know is that in 2015 there was significant but ultimately inadequate support for cap repeal. We were close, but we don’t know exactly how close.

The APTA also believes that the bipartisan, bicameral agreement reached this fall is evidence of legislative progress and support for the cap’s repeal. To a point this is true, but ultimately until the Majority Leader and the Speaker bring the bill to the floor for a vote we are close, but not close enough. As I learned in elementary school, close only counts in horseshoes and bocce.