The PTA Differential: How We Got Here, and What's Next
By David Harris, PTA, MBA
If you've spent much time following APTA's social media feeds or reading comments on the association's news or blog posts, you know that the payment differential for services provided by physical therapist assistants (PTA) set for 2022 is sparking a significant amount of concern and frustration in the physical therapy community.
And with good reason: Nobody wants to see payment decrease for such a crucial profession. On top of that, the coding system CMS was compelled by the legislation to implement to document when services are delivered "in whole or in part" by a PTA or occupational therapy assistant, while improved over its original plan, still has flaws.
But for some, there's another element to the frustration they're feeling: They’re wondering how we got here and what APTA is doing about it. And that's understandable, too, because legislation and regulatory rulemaking are complicated and sometimes messy, and it can be a challenge to keep up even if you’re working hard to pay attention.
So let's walk through it.
Where It All Started: One Enormous Piece of Legislation
The PTA modifier and payment differential weren’t changes dreamed up by CMS — Congress put this policy in the legislation that became the Bipartisan Budget Act, or BBA, of 2018.
You may remember this law when it was passed, because it was huge. It included, among other provisions, $90 billion for hurricane relief efforts, two years of funding for community health centers, $6 billion over two years to address the opioid crisis, a four-year extension of the Children’s Health Insurance Program, a suspension of the debt ceiling, and much more.
The BBA also required that by January 1, 2019, CMS establish a modifier to indicate when an outpatient physical therapist service is furnished in whole or in part by a PTA. The use of the modifier was mandated as of January 1, 2020, for outpatient therapy providers across almost all settings — including private practices, skilled nursing facilities, home health agencies, outpatient hospitals, rehabilitation agencies, and comprehensive outpatient rehabilitation facilities. Starting January 1, 2022, outpatient physical therapy services covered under the Medicare physician fee schedule that are furnished at least in part by a PTA — as identified by the modifier — will be paid at 85% of the applicable fee schedule rate. A similar modifier was designated for services provided by an occupational therapy assistant, which also will be subject to the 85% payment differential.
A Last-Minute Addition With no Chance for Discussion
So how exactly did this mandate to CMS get included in the BBA? Basically, it was included in the legislation at an 11th-hour by members of the U.S. House of Representatives. This policy had not been part of any of the discussions or negotiations during the previous year regarding the therapy cap, nor was it included in any proposed fixes, such as the Medicare Extenders package announced in October 2017. On the evening of Monday, February 5, 2018, with no warning to APTA, the PTA differential policy appeared in the House budget proposal.
As soon as the proposal was released, APTA leaped into action, along with the American Occupational Therapy Association. Both associations objected to the change and gave alternative legislative language to members of the U.S. Senate on Tuesday, February 6, and Wednesday, February 7. The Senate’s response? They told us there was no opportunity to alter the policy. Both the House and Senate packages were “baked” prior to release. The BBA was signed into law on Friday, February 9.
Therapy Cap Tradeoff? Nope
There's a notion floating around that the PTA differential was adopted to "pay for" the therapy cap fix. Not true. The PTA policy was just one of many policies adopted by Congress to pay for its legislative initiatives within the BBA legislation. Rather than allow for timely discussion about its merits among stakeholders, Congress waited until the very last minute to insert the change and then refused to listen to the therapy associations’ suggested improvements or refinements to the legislative language. Just because the therapy cap fix was a positive development of the BBA doesn’t mean that Congress traded one thing for the other. And with $38 billion in adjustments to the current operating models of the health care programs, the physical therapy profession was going to be touched somehow.
From Legislation to Rulemaking
With the legislation now signed into law, CMS was required to adopt a modifier in order to identify when a service is furnished in whole or in part by a PTA or OTA. It also had to interpret what Congress meant by "services furnished in whole or in part" — no small task. Recognizing the ball was now in CMS’ court, APTA directed its advocacy to CMS to ensure that the agency interpreted the policy to, as much as possible, have minimal impact on patients and providers.
The journey toward the system now in place was a bumpy ride. In the 2019 physician fee schedule proposed rule (released in July 2018), CMS proposed a definition of “in whole or in part” as a service for which any minute of a therapeutic service is furnished by the assistant. Needless to say this was completely unacceptable, as well as unworkable from a practical standpoint. APTA fought back.
Responding to feedback from APTA and other stakeholders, CMS revised its proposed definition in the 2019 physician fee schedule final rule and defined a standard for "in whole or in part" as more than 10% of the service being furnished by the PTA or OTA—an approach known as use of a "de minimis" standard. While the finalized definition was less than ideal, it was an improvement upon the “any minute” proposal. And it occurred because we met with CMS and submitted detailed comments against the “any minute” proposal — otherwise it would've been full steam ahead on a terrible plan.
In the 2020 physician fee schedule proposed rule (released in July 2019), CMS proposed how this de minimis 10% standard would be applied. When CMS proposed how the modifiers would be used—"CQ" for PTAs and "CO" for OTAs —it forwarded a needlessly complicated system that threatened patient care and ignored the realities of PT practice. (This PT in Motion News story outlines the problems with the proposed rule from APTA's perspective.) APTA members, association staff, and other organizations pushed back hard by way of thousands of responses to the agency, in addition to meeting with the CMS Administrator and agency staff.
A Better — But Far From Perfect — Final Rule
Because of the collective efforts of APTA members and staff, CMS took notice and clarified how the new standard would be applied. While it hung on to the policy that the modifier must be applied when 10% or more of the service is delivered by a PTA or OTA, the agency’s final rule for 2020 backed away from many of the more problematic elements of its proposed plan.
And that's where we are now.
About All That Letter-Writing…
Our efforts to shape the final version of the application of the CQ modifier involved extensive communication with CMS, including meetings with the agency and submitting comment letters, both from the association itself and thousands of individual members and other stakeholders. You may think that letter-writing isn't an especially effective way of doing advocacy. That's just not so.
Submitting written comments to CMS (or any federal agency) on a proposed rule is an important way to have your voice heard on regulations that can have a large impact on your and other people's lives. Public comments provide regulators with information to help them improve their rules and may even lead to changes in regulations. This is why APTA is so passionate about having the profession use its voice to advocate to CMS and other federal agencies when there are opportunities for comment — it's one of our most crucial, most direct connections with the people actually crafting the rules we'll have to live by.
There's no denying that the PTA payment differential set to go into effect in 2022 is disappointing. But in figuring out the pathway forward it's essential to recognize that the physical therapy profession isn't being singled out: Other essential health care providers, such as physician assistants, clinical social workers, and nurse practitioners, are paid at 85% of the fee schedule. And while it's true, for now, that these providers are able to be paid at 100% of the fee schedule through an allowance known as "incident to" billing, policymakers are looking at getting rid of those provisions and always paying these providers at 85% of the fee schedule.
The reality is that we’re in an increasingly challenging payment landscape across health care, as the health care system is in the midst of a paradigm shift away from the fee-for-service payment structure, in which providers are rewarded solely by the volume of services provided, and toward a structure that holds providers accountable for patient outcomes and costs (value-based payment, or alternative payment models).
I’m hopeful this article gives some insight into what actually happened with the differential and how we've fought tooth and nail to improve the policy since its surprise appearance in federal legislation on February 5, 2018. Health care payment is a volatile landscape right now, and we have to keep striving for progress and working together.
David Harris, PTA, MBA, is vice president of integrations at Upstream Rehabilitation and chief delegate of the PTA Caucus.