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  • Court Dismisses Lawsuit Filed by NC Acupuncture Licensing Board

    Advocates for North Carolina physical therapists (PTs) have scored a victory by way of a superior court, which dismissed a lawsuit brought by the North Carolina Acupuncture Licensing Board (NCALB) against the North Carolina Board of Physical Therapy Examiners (NCBPTE), several PTs, and a physical therapy practice over the issue of dry needling by PTs.

    In September 2015, NCALB filed the lawsuit against NCBPTE, asking the Wake County Superior Court to declare that dry needling by PTs is the unlawful practice of acupuncture, and to require NCBPTE to advise its licensees that dry needling is outside the scope of physical therapist practice. The acupuncture board also asked the court authorize it to send cease and desist letters to PTs who practice dry needling and to sue the PTs who refuse to comply.

    On April 26, Judge Louis Bledsoe III dismissed the suit largely on jurisdictional grounds. "There is no reason to stop North Carolina patients from receiving dry-needling treatment," said North Carolina Physical Therapy Association (NCPTA) President C. David Edwards, PT, DPT, CCCE, in a statement posted to the NCPTA website. "This is especially true when the ones who are trying to eliminate dry needling are doing it to protect their power in the marketplace."

    The dismissal of NCALB’s case against the PT board is not the end of the fight over dry needling in the state. A second lawsuit filed in early October challenging NCALB’s efforts to prevent PTs from engaging in dry needling is still pending in US District Court. That lawsuit, supported by NCPTA, argues that NCALB is violating antitrust law and due process rights in its actions to prevent PTs from practicing the skilled intervention.

    The plaintiffs in the case, titled Henry v North Carolina Acupuncture Licensing Board, filed their lawsuit against NCALB after several years of efforts by the acupuncture board to shut down dry needling by physical therapists. NCALB engaged in various actions to prevent PTs from performing dry needling, including the issuing of "cease and desist" letters to PTs and clinics across the state claiming that the PTs practicing dry needling were illegally engaged in the practice of acupuncture, a Class 1 misdemeanor.

    The Henry lawsuit has legal support in a 2015 decision by the US Supreme Court holding that state licensing boards controlled by market participants, such as NCALB, are not exempt from antitrust claims unless their conduct is actively supervised by the state. The NCPTA lawsuit is the first in the country to bring this type of antitrust violation claim on behalf of PTs since the Supreme Court decision.

    NCPTA set up a "Go Fund Me" page to help fundraising efforts. APTA is working collaboratively with the chapter, and is providing support as NCPTA pursues the legal action.

    Dry needling has been discussed in several states, most of which have included the intervention as part of the PT scope of practice. APTA has created a webpage with resources on the topic, and the association's Learning Center offers courses on dry needling and clinical decision-making and background evidence for dry needling.

    Bill to End Physician Self-Referral Reintroduced in the House

    Welcome back: APTA and a coalition of medical groups are applauding the reintroduction of a bill in the House of Representatives that would close up Medicare self-referral loopholes. Those loopholes allow physicians to refer patients for certain services—including physical therapy—to a business that has a financial relationship with the referring provider.

    Titled the Promoting Integrity in Medicare Act (PIMA), the bill seeks to eliminate exceptions to the federal law originally intended to prohibit self-referral. That law, known as the Stark law, does prohibit most self-referral practices, but it also contains language that allows physicians to self-refer for several "common sense" or same-day treatments. Unfortunately those exceptions also include services that are rarely provided on the same day—physical therapy, anatomic pathology, advanced imaging, and radiation therapy.

    PIMA would eliminate those loopholes not only as a way to ensure that the exceptions are used according to their original intent, but to reduce overutilization and overall health care costs. According to the latest estimates from the Congressional Budget Office, enacting the changes contained in PIMA would save Medicare an estimated $3.3 billion over 10 years, mostly due to what research points to as overuse of referrals among providers who can direct patients to services with a financial connection. The bill is sponsored by Rep Jackie Speier (D-CA14), who introduced a similar bill in 2014.

    "How many [Government Accountability Office] studies outlining the abuse and billions of dollars of Medicare reimbursement to doctors for unnecessary services that are driven purely for personal profit does it take to shut this activity down?" said Speier in a statement on the bill. "This is a golden opportunity to put patient health and program health over profits. We should always work to improve the quality and cost-effectiveness of government programs—this bill will save taxpayers money and help seniors who depend on Medicare for their quality of life."

    APTA is a strong supporter of the legislation, and is a member of the Alliance for Integrity in Medicare (AIM), a coalition of professional groups opposed to their services' inclusion in the Stark exceptions. AIM isn't alone in the fight: in 2014, the American Association of Retired Persons (AARP) issued a statement in support of PIMA.

    "The exceptions in the Stark law were intended to allow a limited number of common services such as lab tests and x-rays to be performed during office visits," said Michael Hurlbut, APTA senior congressional affairs specialist. "PIMA doesn't change that, but it does remove physical therapy from a list of exceptions that it should never been a part of in the first place."

    "Reforming the … exception through the passage of [PIMA] will ensure Medicare recipients receive the highest quality and safest health care appropriate to their needs," AIM says in a statement on the bill, adding that the estimated savings "is in the best interests of beneficiaries, providers, and our nation's health care system overall."

    Find out more about this issue on APTA's self-referral webpage, and take action now by asking your legislators to close the self-referral loophole. Contact the APTA advocacy staff for more information.

    APTA-Supported Youth Sports Opioid Education Bill Moves Ahead

    A bill supported by APTA that recently passed US House of Representatives Energy and Commerce Committee could help to bring needed education on the dangers of opioids—and the benefits of alternative, nonopioid approaches to pain treatment, such as physical therapy—to youth sports.

    On April 27, the committee reviewed the John Thomas Decker Act (H.R. 4969), proposed legislation that would direct the Centers for Disease Control and Prevention (CDC) to develop and provide educational materials specifically targeted at teenagers who have been injured playing youth sports. The bill is sponsored by Republican Reps Patrick Meehan (PA-7) and Thomas Rooney (FL-17), and Democrats Ron Kind (WI-3) and Marc Veasey (TX-33).

    "APTA believes it is crucial to provide teenagers and adolescents injured in sports with appropriate educational materials related to the costly and addictive nature of opioids and to safe and effective treatment alternatives, such as physical therapy," stated APTA President Sharon L. Dunn, PT, PhD, OCS, in an APTA letter in support of the bill. "The John Thomas Decker Act will play a critical role in helping to curb this epidemic [of opioid abuse and heroin use] by ensuring adequate knowledge for our nation's youth."

    The CDC is well-positioned to provide education that supports alternatives to opioids for pain, having issued a set of high-profile prescription guidelines that cite nonopioid approaches, including physical therapy, as the recommended first-line treatment.

    The bill was forwarded to the House for a full vote.

    New Wisconsin Law Allows PTs to Order X-Rays

    Physical therapists (PTs) in Wisconsin now have a big addition to their licensing law: the ability to order x-rays. The change, signed into law by Gov Scott Walker on April 25, marks the first time any state has specifically authorized PTs to make the decision.

    Under the new law, to be able to order x-ray imaging, the PT must hold a clinical doctorate degree or a specialist certification, or have completed a board-approved residency or fellowship, or a formal X-ray ordering training "with demonstrated physician involvement."

    The law also requires the PT to communicate the x-ray order to the patient's primary care physician "or an appropriate health care practitioner" to ensure coordination of care. That communication is not required if the patient doesn't have a primary care physician or was not referred to the PT by another practitioner, or if the radiologist doesn't identify a significant finding.

    According to Angela Shuman, APTA's director of state government affairs, the Wisconsin law is historic because it's the first time a state PT licensing law has specifically listed ordering x-rays as within a PT's scope of practice.

    "No other state PT practice acts specifically say that PTs can order x-rays—the laws are mostly silent on the matter," Shuman said. "This lack of specific language can make it difficult for PTs to understand just what they can or can't do, but Wisconsin has taken the step to make things very clear." The state has also changed the licensing law for the individuals who perform radiologic procedures such as x-rays, specifying that they can now accept orders from licensed PTs, she explained.

    APTA, the Wisconsin Physical Therapy Association, and supporters worked for more than 2 years to advocate for the new law.

    The bill was sponsored by Rep Joe Sanfelippo in the Wisconsin State Assembly, with a companion bill in the state senate sponsored by Sen Van Wanggaard. The bill becomes effective the day after it is electronically published by the state's Legislative Reference Bureau.

    SNF and IRF Proposed Rules Continue CMS Push Toward Quality Reporting, Value-Based Payment

    Continued emphases on quality reporting and new payment models are at the center of the Centers for Medicare and Medicaid Services’ (CMS) proposed 2017 rules for skilled nursing facilities (SNFs) and inpatient rehabilitation facilities (IRFs), along with an $800 million increase in payments to SNFs, and a $125 million increase for IRFs.

    CMS is proposing an overall payment increase of 2.1%, or an estimated $800 million, but the rule also includes notice that CMS is continuing its push for quality-reporting measures required by the Improving Post Acute Care Transformation (IMPACT) Act. The 2017 proposed rule adds to the list of quality measures that will be required of SNFs beginning in 2018 to include data on discharge to community, Medicare spending per beneficiary, and potentially preventable 30-day readmissions. The proposal also stipulates that by 2020, SNFs will be required to supply reports on drug regimen reviews with follow-up.

    The rule also provides a few more details on how CMS intends to create a value-based purchasing program (VBP) for SNFs as it continues to research different models. According to a fact sheet from CMS, the agency will seek public comment on performance standards, performance periods, scoring methodology, and the development of confidential feedback reports. APTA will advocate for a physical therapy representative to serve on the technical expert panel that will review input.

    Next year's payment increase for IRFs is proposed to drop slightly from this year's overall 1.6% increase, down to 1.45% overall (estimated $125 million), though the final amount may be updated "if more data becomes available," according to a CMS fact sheet.

    Like the SNF proposed rule, the IRF proposal also establishes more quality-reporting requirements around many of the same areas that will be required of SNFs (discharge, spending, readmissions, drug regimen review, etc). Additionally, the IRF rule would add 4 new measures to the facilities' public reporting requirements, including reports to a publicly accessible CMS website, such as Hospital Compare.

    APTA will submit comments on both proposed rules by the June 20 deadline. In addition, the association will develop fact sheets on the rules to help members understand what's being proposed.

    Inpatient Payment Proposed Rule Eliminates '2 Midnight' Reductions, Delivers 1-Time Increase to Hospitals

    The Centers for Medicare and Medicaid (CMS) will not only back away from payment cuts associated with the "2 midnight" rule in 2017, but will actually award hospitals a .6% increase, according to a proposed inpatient prospective payment system (IPPS) and long- term care hospital rule released recently. In addition to the shift away from the penalties, the proposed rule continues the agency's push for more quality reporting and value-based purchasing.

    The biggest news from the proposed rule is that CMS will not implement a .2% reduction for inpatient services—a cut designed to offset what it had anticipated would be increased spending associated with the 2-midnight rule. The 2-midnight rule was intended to reduce costly admissions in cases better suited to outpatient treatment by stipulating that auditors can presume that an admission is reasonable and necessary if the patient spent at least 2 days as an inpatient, defined as 2 midnights in a hospital bed.

    The rule was challenged in a lawsuit filed by the American Hospital Association (AHA) and other groups. In September, a judge partially sided with the AHA and ordered the US Department of Health and Human Services to justify the cut. While CMS maintains that the assumptions it used to establish the cut were reasonable, it has announced in a fact sheet that the penalty will be permanently removed "in light of recent review and the unique circumstances."

    Additionally, to account for the effects of the penalty in the years since the rule's adoption in 2013, CMS has announced that hospitals will receive a 1-time .6% increase in 2017. According to an article in Modern Healthcare, the combined effects of the adjustment and other additional payments in the rule amount to a $539 increase for the IPPS.

    Other notable provisions in the new rule:

    • CMS will implement a standardized process for ensuring that Medicare beneficiaries who have been receiving outpatient observation status for more than 24 hours are well-informed of how observation status affects cost-sharing and eligibility for Medicare coverage of skilled nursing facility services. A form, called MOON (Medicare Outpatient Observation Notice), must be accompanied by an oral explanation. The patient (or designee) must also sign the MOON to verify that he or she understands the implications of observation status.
    • The Value-Based Purchasing Program will expand to include not only more units but more measures used to evaluate those units—over time. The additional units won't be added until 2019, and the additional measures—which include 30-day pneumonia mortality, acute myocardial infarction, heart failure, and coronary artery bypass grafting mortality rates—will be added in 2021 and 2022.
    • In order to satisfy the requirements of the Improving Post-Acute Care Transformation (IMPACT) Act, CMS is proposing 3 claims-based measures and 1 new assessment-based quality measure to be included in the LTCH quality reporting program (QRP). The 3 claims based measures are discharge to community, Medicare spending per beneficiary, and the potentially preventable 30-day post-discharge readmission measure. The assessment-based measure being added is a drug regimen review conducted with follow-up for identified issues.

    APTA regulatory affairs staff will continue to monitor the proposed rule, and will make a fact sheet available in the coming weeks.

    For more on how the shift in models of care affects physical therapy, don't miss the NEXT Conference and Exposition, June 8-11 in Nashville, and check out "Maximizing Physical Therapy's Value: How to Best Transition to Value-Based Care."

    PTs, PTAs, Students Bring the #PTTransforms Message to Capitol Hill During Federal Advocacy Forum

    When it comes to issues such as repeal of the therapy cap, opportunities for student loan relief, and the ability of a physical therapist (PT) to bring in another qualified PT during absences, the halls of Congress may be just a little more physical therapy-informed than they were this time last week. But then, what do you expect when more than 250 PTs, physical therapist assistants (PTAs), and students from 46 states meet face-to-face with hundreds of legislators and staff?

    The meetings were part of the APTA Federal Advocacy Forum, held April 3-5 in Washington DC, a yearly event designed to educate participants on hot legislative issues and creative outreach ideas, as well as provide an opportunity for in-person advocacy on Capitol Hill.

    For their advocacy with legislative offices, participants came ready to discuss a wide range of topics related to physical therapy but placed particular emphasis on 3 bills:

    • Repeal of the Medicare therapy cap (HR 775, S 539)
    • Passage of a workforce bill (HR 2342, S 1426) that would add PTs to the list of professionals who qualify for the National Health Services Corps, and meet the needs of underserved areas (and, thereby, possible student loan repayment by the federal government)
    • Passage of a "locum tenens" bill (HR 556, S 313) that would include PTs among the health care providers who can bring in another licensed physical therapist to treat Medicare patients and bill Medicare through the practice provider number during temporary absences for illness, pregnancy, vacation, or continuing medical education.

    In addition to the day of lobbying, forum attendees participated in sessions on alternative payment models, the CMS Comprehensive Care for Joint Replacement bundled care model, advocacy through social media, and the role of student advocacy. Guest speakers included Sen Richard Burr (R-NC), Congressional Management Foundation CEO Brad Fitch, and Robert Blizzard, an expert in public opinion research. The forum also took time to honor Tim Schell, PT, with this year's APTA Federal Government Affairs Leadership Award.

    "Lawmakers really do listen to what their constituents have to say, which means that advocacy works best when legislators and their staff hear directly from the people affected," said Michael Matlack, APTA director of congressional affairs. "The physical therapy profession is fortunate to have so many people who are committed to improving care through advancing the profession, and the work of our members during the forum is a direct demonstration of that commitment."

    Want to get a feeling for what it's like to participate in an APTA Federal Advocacy Forum? Check out highlights in the storify below—and then make plans to attend next year's forum.


    Oregon First State to Sign On to PT, PTA Licensure Compact

    Oregon has made physical therapy history by becoming the first state to join the Physical Therapy Licensure Compact (PTLC), a system that aims to make it possible for physical therapists (PTs) and physical therapist assistants (PTAs) to practice in multiple states through a single license and privilege.

    The legislation, signed into law by Gov Kate Brown, adopts standard language allowing Oregon to participate in a system in which a PT or PTA with a valid, unencumbered license in one participating state may practice in any other participating state. Qualified PTs and PTAs would be able to choose any or all participating compact states to gain practice privileges, but would only need to maintain licensure in their "home" state.

    The push for adoption of the PTLC among states is being led by the Federation of State Boards of Physical Therapy (FSBPT) and APTA, working with state APTA chapters, state regulatory boards, and supporters of increased licensure portability. That effort officially launched earlier this year.

    Though decidedly good news, Oregon's adoption of the PTLC is only a first step: to become operational the system must have at least 10 participating states. In a recent article on the PTLC in PT in Motion magazine, APTA Vice President of Government Affairs Justin Elliott said that states should consider moving on the issue soon. "The creation of a compact for PTs and PTAs is truly going to transform the state licensure process," Elliott said, "all while maintaining and even improving the level of public protection in the compact states."

    "The federation is thrilled Oregon was the first state to enact the Physical Therapy Licensure Compact," said FSBPT President Maggie Donohue, PT. "This is a demonstration of how APTA, the FSBPT, the Oregon Chapter, and the Oregon Physical Therapy Licensing Board can work together to benefit the health care consumer. We trust Oregon is the model for continued collaboration and advancement of patient access to physical therapy services."

    Like Donohoe, APTA President Sharon L. Dunn, PT, PhD, OCS, hopes that Oregon's decision will pave the way for other states.

    "The PTLC is a common-sense solution to provide greater licensure portability and increased patient access, and to facilitate the use of telehealth." Dunn said. "We applaud the state of Oregon for being the first to enact the compact legislation and look forward to more states joining in the near future."

    Therapy Cap Repeal Amendment Gives Senators an Opportunity to Keep Up the Drumbeat to End a Flawed Policy

    Two US senators are working to keep repeal of the Medicare therapy cap front-of-mind on Capitol Hill. Though the chance of passage is slim this year, sponsors Ben Cardin (D-MD) and Dean Heller (R-NV) hope that an amendment they sponsored will refocus attention on ending the therapy cap, and help to keep the issue well-positioned when the current exceptions process runs out in December 2017.

    The amendment calls for a full repeal of the payment caps for physical therapy treatment under Medicare Part B, which sets limits at $1,960—an amount that also includes speech-language pathology services. In past years (including 2015 and 2016) the cap has been accompanied by an exceptions process that allows payment for physical therapy over the limit. APTA describes the therapy cap as a policy that "discriminates against the most vulnerable Medicare beneficiaries," and the exceptions process as an "arbitrary" system.

    The senators hope to attach the amendment to a popular bill that addresses the opioid epidemic, but the realistic chances of that happening are not good. Cardin and Heller argue that given the role of physical therapy in the management of chronic pain, it's appropriate to include the cap repeal in the opioid bill. However, both senators feel that even if they aren't successful in getting the amendment added, their efforts will help to remind the Senate that it will take up the issue next year, when the current exceptions process runs out on December 31.

    In past years, a debate over the elimination of the therapy cap has been a more-or-less annual event that was part of the fight to end the flawed sustainable growth rate (SGR), a system that routinely required the so-called "doc fix" to the physician fee schedule to avoid severe payment cuts. With the elimination of the SGR in 2015, the 2 issues were separated. Congress came close to a full repeal of the cap, but in the end decided to keep it—and its exceptions process—in place until the end of 2017. Cardin and Heller aim to remind their colleagues that the issue has not disappeared by any means.

    "These arbitrary caps create an unnecessary and burdensome financial barrier to Medicare beneficiaries who rely on essential rehab services such as physical and occupational therapy to live healthy and productive lives," Cardin said in his floor speech (video of Cardin's entire speech available here). As for the appropriateness of the amendment in the opioid bill, Cardin cited a recent Centers for Disease Control and Prevention (CDC) clinical guideline that asserts physical therapy and other nondrug approaches to chronic pain "have been underutilized and, therefore, can serve as a primary strategy to reduce prescription drug medication abuse and improve the lives of individuals with chronic pain."

    Heller described the effect of a therapy cap repeal in plain terms. "If patients had better access to physical therapy, they would not be as dependent on highly addictive pain medication," he said, adding that "seniors would also have a higher quality of life by treating the sources of the pain and rebuilding their strength."

    Repeal of the therapy cap remains 1 of APTA's highest public policy priorities, and APTA President Sharon L. Dunn, PT, DPT, OCS, voiced the association's strong support of the senators' efforts during this session.

    “APTA believes the latest extension of the exceptions process must be the last, and the therapy cap must be repealed and replaced with meaningful reforms that are in the best interest of the patient,” Dunn said. “APTA will continue to shine a spotlight at every opportunity before Congress on how the misguided therapy cap policy negatively impacts the patients we serve.”

    Repeal of the therapy cap will require a strong, unified voice from the physical therapy profession. Find out how you can take action—and if you really want to get involved, don't miss the upcoming APTA Federal Advocacy Forum in Washington DC, April 3-5. Registration deadline is March 18.

    What HE Said: 6 Great Quotes From the Huffington Post Interview With APTA Executive Vice President Justin Moore, PT, DPT

    Your call: you could spend your Huffington Post browsing time reviewing stories on the latest antics of political candidates or staring at yet another cute animal video, or you could devote a few minutes to an APTA staffer's views on physical therapy—its current state, its future, and what might be done to increase innovation in the profession.

    APTA Executive Vice President of Public Affairs Justin Moore, PT, DPT, participated in a recent Q-and-A style interview with blogger Marquis Cabrera and physical therapist DPT student Lauren Jarmusz. The interview posted on March 1, and it's a worthwhile read. Here are a few highlights among Moore's quotes.

    • "The current medical hierarchy is a culture of control over collaboration and care," 1 of 3 barriers to innovation in physical therapy cited by Moore. The other 2: the fee-for-service model and payment restrictions such as the therapy cap.
    • "We need to show the quality of our services through a reformed coding model," on the need for a retooled system that accounts for patient management or condition.
    • "As the US health care system evolves, PTs will be taking on more primary roles. They'll be more engaged, for example, in community health care models."
    • "There's a huge potential in patients working with PTs to better manage their health. When PTs actively participate with patients and other providers to manage conditions, the result will be reduced health care costs and better patient outcomes."
    • "Treatment by PTs traditionally has been positioned at the back end of the health care continuum. To reduce the amount spent on musculoskeletal disorders, physical therapy should be positioned on the front end."
    • "Patients put their quality of life in our hands, and that role is so important to who we are as a profession."

    The interview also covered the association's consumer education efforts, the Innovation 2.0 initiative, and Moore's advice to students in DPT programs, something he called "a unique and entrepreneurial calling."