The payment differential for services provided by physical therapist assistants included in the proposed 2022 Medicare Physician Fee Schedule 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 part of our 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.
To address the problems with the system and identify ways to mitigate its effects, it's important to understand the history of the differential and what APTA has been doing to fight 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.
The law itself was massive. 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 Jan. 1, 2019, CMS establish a modifier to indicate when an outpatient physical therapist service is furnished at least in part by a PTA. The use of the modifier was mandated as of Jan. 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.
The payment shift is due to arise when the 2022 Medicare Physician Fee Schedule goes into effect on Jan. 1, 2022. That's when outpatient physical therapy services covered under the Medicare physician fee schedule that are furnished 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
How exactly did this mandate to CMS get included in the BBA? Basically, it was included in the legislation at the 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, Feb. 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 took 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 Feb. 6, and Feb. 7. We were told that 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 Feb. 9.
Therapy Cap Tradeoff? No
There has been speculation that the PTA differential was adopted to "pay for" the therapy cap fix implemented in 2018. That's 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 last minute to insert the change and then refused to listen to the therapy associations’ suggested improvements or refinements to the legislative language. The therapy cap fix was a positive development of the BBA, but it doesn’t mean that Congress traded one thing for the other. 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 to identify when a service is furnished by a PTA or OTA. It also had to interpret what Congress meant by "services furnished in whole or in part" — no small task. With the issue now squarely in the purview of CMS, APTA directed its advocacy to CMS to ensure that the agency interpreted the policy to have as small an impact as possible 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 APTA found this completely unacceptable, as well as unworkable from a practical standpoint. We 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 an unacceptable plan.
In the 2020 physician fee schedule proposed rule (released in July 2019), CMS described how this de minimis 10% standard would be applied. When the agency 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 physical therapist practice. 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.
The differential system set in place in 2020 remained largely unchanged in the final 2021 fee schedule, as CMS attempted to minimize the magnitude of rule changes during the coronavirus pandemic.
However, the release of the proposed 2022 rule marks a significant turning point: the implementation of the payment differential itself.
Some Victories Along the Way
The differential is based on services being delivered "in whole or in part" by a PTA — but what constitutes "in part"? That's the question at the center of much of APTA's advocacy with CMS, which has gradually conceded to several of the association's criticisms around definitions.
The proposed 2022 rule takes another step in that direction, acknowledging that CMS had incorrectly applied the CQ modifier in certain scenarios that should not have triggered it. APTA argued that requiring use of the modifier in those scenarios would disincentivize care, effectively paying clinics less when they in fact deliver more minutes. CMS agreed and has proposed eliminating use of the modifier in those instances. APTA will be issuing guidance on appropriate use of the modifier once the rule and the CQ modifier policy is finalized.
APTA has also been advocating for another change that would benefit private practices that employ PTAs: allowing private practices to conduct general supervision of PTAs rather than direct supervision, which is permitted in every other physical therapy setting. While CMS didn't adopt that change in the proposed 2022 rule, it does offer to make supervision somewhat less burdensome for private practice PTs by allowing for supervision through real-time audio-visual technology. During the public health emergency, PTAs are permitted to be supervised through “virtual presence,” and CMS is soliciting feedback on making the policy permanent.
The change comes close to APTA's recommendation for general supervision, but it is more stringent in its insistence on a visual component, compared with general supervision's requirement that the supervision be made available through "telecommunications."
Making Our Case to CMS — and Congress
The concessions made by CMS, while welcome, don't make the differential system acceptable. APTA is working with AOTA and other groups to urge Congress to intervene by delaying implementation, providing exemptions such as for rural areas, and requiring CMS to allow for general supervision of PTAs working in private practices.
At the same time, we are communicating with CMS regularly on how the system could be made less damaging and are including our critique of the plan in our comments to the agency on the proposed 2022 fee schedule.
The All-Important Role of Members in Advocacy
Throughout the history of APTA's advocacy around the differential, our efforts have been built on extensive communication with CMS, including meetings with the agency and submitting comment letters, both from the association itself and from 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 make 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.
Your voice matters, and it's extremely important to let CMS know how the differential will impact your ability to care for patients. APTA has created two template letters for members to use to submit comments to CMS — one that covers all the issues included in the proposed rule and a second that focuses specifically on the PTA payment differential. You can submit one or both. Comments are due by Sept. 13.
(This article was updated and expanded from an earlier article published in February 2020.)