Rosalind Franklin University Issues Public Comment on Centers for Medicare & Medicaid Services Proposed Rule

WASHINGTON, Aug. 26 -- Patrick Withrow, director of clinical education at Rosalind Franklin University, North Chicago, Illinois, has issued a public comment on the Centers for Medicare and Medicaid Services proposed rule entitled "Medicare Program: CY 2021 Revisions to Payment Policies under the Physician Fee Schedule and Other Changes to Part B Payment Policies; Medicare Shared Savings Program Requirements; etc.". The comment was written on Aug. 19, 2020, and posted on Aug. 21, 2020:

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I appreciate the opportunity to provide comments to the Centers for Medicare & Medicaid Services in response to the 2021 Physician Fee Schedule proposed rule.

As a Physical Therapist, I am writing to strongly oppose CMS' significant payment reductions for physical therapy services beginning in 2021. These payment reductions, if implemented as proposed, will negatively affect Medicare beneficiary access to physical therapy.

As the COVID-19 pandemic exploded, physical therapists were involved in critical roles on the front lines, helping patients fight the disease, regain mobility, and recover. And, while COVID-19 presents a new challenge, physical therapists who specialize in the treatment of patients with cardiopulmonary (heart and lung) issues are no strangers to the ICU team, having long practiced in these settings to provide care to the most critically ill. What's more, leaving the hospital after battling to survive COIVD-19 is by no means the end of the road to recovery for these patients.

As a Board-Certified Clinical Specialist in Geriatric Physical Therapy, I am keenly aware of the deleterious effects of lack of health care, especially a lack of rehabilitation and wellness services, on the older adults of this country.

Easy access to critical physical therapist care after hospitalization is essential for these patients to regain their health and independence. However, CMS has proposed to impose a 9% cut in payment for physical therapy services in 2021. While I greatly appreciate that CMS has proposed to increase the work Relative Value Units of the evaluation and re-evaluation codes, it is not enough to offset the damage that will be caused by this across-the-board cut due to the application of the budget neutrality adjustment to the conversion factor. The 9% cut, if finalized, will cause a serious financial strain on outpatient physical therapy providers.

These cuts will only create more harm to the health care system that is working tirelessly to fight the pandemic.

By following federal guidelines aimed at mitigating the transmission of the coronavirus, physical therapy providers are seeing fewer patients and thus are struggling to meet short-term obligations, such as payroll and rent, and are making painful decisions to furlough staff. At the same time, physical therapy providers are preparing for the expected surge in survivors who need care. As states move to reopen their economies, this next phase of the pandemic is no time to make it more difficult for patients to access physical therapy. But that's exactly what will happen if the proposed cuts to physical therapy services are not stopped. Thus, how does CMS intend to reconcile what likely will result in a significant decline in beneficiary access if the agency implements the estimated 9% payment reduction to physical therapy providers?

CMS' 2021 PFS Proposed Rule Regulatory Impact Analysis

CMS states within the proposed rule that it prepared a Regulatory Impact Analysis that, "to the best of our ability, presents the costs and benefits of the rulemaking."

The Regulatory Flexibility Act of 1980 requires CMS to analyze regulatory options for small businesses and other entities. CMS notes within the PFS rule that the analysis must include a justification concerning the reason action is being taken, the kinds and number of small entities the rule affects, and an explanation of any meaningful options that achieve the objectives with less significant adverse economic impact on the small entities.

CMS states in the Regulatory Impact Analysis section of the 2021 PFS proposed rule:

We estimated, as discussed in this section, that the PFS provisions included in this proposed rule would redistribute more than $100 million in 1 year. Therefore, we estimate that this rulemaking is "economically significant" as measured by the $100 million threshold, and hence also a major rule under the Congressional Review Act... Approximately 95 percent of practitioners, other providers, and suppliers are considered to be small entities, based upon the SBA standards. There are over 1 million physicians, other practitioners, and medical suppliers that receive Medicare payment under the PFS. Because many of the affected entities are small entities, the analysis and discussion provided in this section, as well as elsewhere in this proposed rule is intended to comply with the RFA requirements regarding significant impact on a substantial number of small entities... As indicated elsewhere in this proposed rule, we proposed a variety of changes to our regulations, payments, or payment policies to ensure that our payment systems reflect changes in medical practice and the relative value of services, and implementing statutory provisions. We provide information for each of the policy changes in the relevant sections of this proposed rule. We are unaware of any relevant federal rules that duplicate, overlap, or conflict with this proposed rule. The relevant sections of this proposed rule contain a description of significant alternatives if applicable.

CMS further states: "The analysis explains the rationale for and purposes of this proposed rule; details the costs and benefits of the rule; analyzes alternatives; and presents the measures we would use to minimize the burden on small entities."

Resource-Based Work, Practice Expense, and Malpractice RVUs

CMS states in the proposed rule that "the payment impact for an individual practitioner could vary from the average and would depend on the mix of services he or she furnishes. The average percentage change in total revenues will be less than the impact displayed here because practitioners and other entities generally furnish services to both Medicare and non-Medicare patients. In addition, practitioners and other entities may receive substantial Medicare revenues for services under other Medicare payment systems."

To calculate the CY 2021 conversion factor, CMS multiplied the product of the current year conversion factor and the update adjustment factor by the budget neutrality adjustment. CMS estimates the CY 2021 PFS conversion factor to be 32.2605, $3.83 less than the conversion factor in 2020.

Table 90 within the proposed rule shows the estimated impact on total allowed charges, by specialty, of all the RVU changes. The table illustrates that physical therapy/occupational therapy is facing a combined estimated impact of -9%. CMS explains:

The most widespread specialty impacts of the RVU changes are generally related to the changes to RVUs for specific services resulting from the misvalued code initiative, including RVUs for new and revised codes. The estimated impacts for some specialties, including endocrinology, rheumatology, family practice, and hematology/oncology reflect increases relative to other physician specialties. These increases can largely be attributed to previously finalized policies for increases in valuation for office/outpatient E/M visits which constitute nearly 20 percent of total spending under the PFS. These increases are also due to proposed increases in value for particular services following the recommendations from the American Medical Association (AMA)'s Relative Value Scale Update Committee (RUC) and CMS review, increased payments as a result of finalized updates to supply and equipment pricing, and the continuing implementation of the adjustment to indirect PE allocation for some office-based services.

With respect to the physical/occupational therapy specialty, CMS states the estimated impacts of -8 [-9]% reflect proposed increased valuations for therapy evaluation services that are analogous to office/outpatient E/M visits, noting, however, that therapy evaluation services do not account for a large portion of allowed charges for these specialties.

Comments

There is a significant payment reduction facing physical therapy providers in 2021, the majority of whom are considered small entities. By redistributing Medicare outlays across small entities, CMS' actions will significantly impact the provider community and the patients they treat. Mass adjustments to the PFS will cause disruptive reductions to revenue that, in turn, will severely jeopardize patient access to care. These concerns are magnified by the significant economic hit providers have taken in the past few months as a result of the COVID-19 PHE. If the cuts are implemented as proposed, access to physical therapy will be severely limited due to physical therapists being financially incapable of treating Medicare beneficiaries.

Physical therapists and physical therapist assistants who are on the frontlines of the COVID-19 crisis response have been crucial members of the health care team, providing care in hospitals, rehabilitation facilities, and nursing homes. Meanwhile, physical therapists and physical therapist assistants who work in local clinics and other community-based settings have helped ensure that essential care to individuals not affected by COVID-19 is not disrupted. Physical therapists and physical therapist assistants can reduce unnecessary hospitalizations and preventable bottlenecks in the health care system, while lowering the total cost of health care and improving societal health. Physical therapists and physical therapist assistants serve a critical role in the health and vitality of this nation. The federal government, as well as patients and taxpayers, are better served in the long run by ensuring that the Medicare program promotes efficient treatment of beneficiaries, which cannot happen unless there enough providers to do so.

The unanticipated Public Health Emergency declared in 2020 and the subsequent sharp decline in patient visits combined with incredible economic challenges have added significantly to concerns of whether or not providers will be able to afford to keep the doors to their clinics, rehabilitation agencies, nursing homes, and hospital outpatient departments open. Furthermore, it is clear that the recovery and restoration to full patient utilization will be drawn out. Looking longer term, the inevitable issues of access to care, rising debt, and shrinking reimbursement will provide the perfect storm for discouraging the next generation of individuals from choosing to enter the physical therapy profession at all. Shortages of physical therapists will only become more problematic as baby boomers (both patients and retiring providers) are of Medicare age while more individuals are seeking access to effective nonpharmacological services.

I fail to see where CMS has made any effort in the 2021 PFS proposed rule or in the 2020 PFS final rule (84 FR 62568) to provide an analysis that satisfies the requirements of the Regulatory Flexibility Act of 1980 (Pub. L. 96-354). Contrary to such requirements, the RIA included within the proposed rule does not include a justification concerning the reason this action is being taken; does not address the kinds and numbers of small entities the rule affects; and does not include an explanation of any meaningful options that achieve the objectives with less significant adverse economic impact on the small entities.

Over the last 12 months, APTA has worked diligently -- through comment letters, correspondence, and numerous meetings with CMS and HHS staff -- to advocate for a reconsideration of the drastic reductions facing the physical therapy profession in 2021 so as to allow outpatient physical therapy providers to be able to continue to deliver high-quality care to their patients with minimal administrative and financial disruptions. Many physical therapists and physical therapist assistants also submitted comment letters during the CY 2020 Physician Fee Schedule Rulemaking, echoing similar concerns and recommendations.

During both the rulemaking process and in subsequent meetings and correspondence, stakeholders offered the agency numerous ideas to mitigate the payment reductions on physical therapy providers and provided boundless volumes of information regarding the provision of physical therapy services and the current state of physical therapist practice. Accordingly, CMS has within its possession the facts it needs to see the detrimental impact this policy will have not only on the physical therapy profession, but numerous other professions impacted by the rule, and ultimately the harmful impact that will be borne by the Medicare patient population as a result of their inability to access care.

Within the rule, however, CMS offers no explanation or rationale for why the multitude of recommendations put forth by APTA and the other national associations representing physical therapy, occupational therapy, and speech-language pathology providers and their members are inadequate. I question why the agency continues to dismiss the evidence and arguments offered by APTA and others that clearly convey that these payment reductions will have a net negative impact on the Medicare program. The agency also continues to ignore any alternative policy options that it has at its disposal.

For example, CMS has not addressed their rationale for refusing to consider, or even put forth as an idea in 2020 or 2021 PFS rulemaking, the following policy options:

* As discussed in the Medicare Payment Advisory Commission's 2018 Report to Congress, and again referenced in its March 2019 Report to Congress, MedPAC suggested that to address the devaluation of ambulatory E/M services, CMS should adopt a budget-neutral approach that afforded a 10% payment rate increase for such services, noting that a higher or lower increase could be considered. MedPAC indicated that a 10% percent increase would raise annual spending for ambulatory E/M services by $2.4 billion. To maintain budget neutrality, payment rates for all other fee schedule services would be reduced by 3.8%. [A number far lower than the 9% reduction facing therapy providers].

* MedPAC also suggested that to reduce the negative impact on providers facing payment reductions, CMS could phase in the payment increases and decreases gradually over multiple years. This recommendation was provided not only in MedPAC's 2018 and 2019 Reports to Congress, but also echoed by APTA and other stakeholders as an option for CMS' consideration during formal notice and comment rulemaking and in subsequent verbal and written communications with the agency.

* Delaying implementation of the add-on code GPC1X. This code can be billed by any physician specialty who furnishes E/M services. However, the CY 2020 PFS final rule and CY 2021 PFS proposed rule discussion reveals that there were numerous stakeholders that voiced concern about whether the HCPCS code GPC1X should be implemented at all or, at a minimum, deferred pending further evaluation, particularly due to concerns about the agency's utilization estimates, potential overlap with existing codes, and disproportionate impact on provider specialty payments.

By continuing to ignore the input provided by stakeholders, as well as failing to consider the impact that this policy will have on Medicare beneficiaries and the therapy providers who serve them, it is apparent that CMS may have made many flawed assumptions regarding the current state of practice. The number of Medicare beneficiaries accessing physical and occupational therapy services has been increasing due in part to the aging of our population and an increase in the number of beneficiaries with multiple chronic conditions. This trend is positive in that expanded utilization of outpatient physical therapy results in fewer ED visits, hospitalizations, and readmissions. However, because physicians frequently order therapy to carry out their patient's rehabilitation plans of care, a 9% cut would be devastating and result in closures of the very practices that work hand in glove with those physicians.

CMS has failed to explain the rationale for their actions and has offered no assurance that the numerous proposals offered by stakeholders were given serious consideration. The agency also has put forth no alternative policy options that it has at its disposal, even though the reduced conversion factor, which translates to significant payment reductions for physical therapy providers, will have a detrimental impact on Medicare beneficiary access. Considering the magnitude of the impact facing physical therapy providers and dozens of other specialties in 2021, CMS must ensure that the process it uses to develop policies is transparent and complies with the Regulatory Flexibility Act.

CMS attempts to minimize the estimated payment reductions facing health care providers in 2021 by stating in the 2021 PFS proposed rule that the average percentage change in total revenues will be less than the impact displayed in Table 90 because "practitioners and other entities generally furnish services to both Medicare and non-Medicare patients. In addition, practitioners and other entities may receive substantial Medicare revenues for services under other Medicare payment systems." However, as previously communicated to both HHS and CMS, and as the agency is well aware, many commercial payers, Medicaid plans, and worker's compensation programs tie their fee schedules to Medicare's fee schedule, either directly or indirectly. It is disingenuous to assert that the change in total revenues will be less than the impact displayed. Moreover, while I recognize that some facility-based physical therapy providers receive Medicare revenues for services under other Medicare payment systems, physical therapists in private practice, rehabilitation agencies, and comprehensive outpatient rehabilitation facilities do not.

In short, CMS did not comply with the Regulatory Flexibility Act of 1980 by:

1. Providing no justification or rationale for why physical therapy providers -- who offer nonpharmacological acute and chronic pain prevention, treatment, and management; are on the frontlines of the COVID-19 crisis response; are crucial members of the health care team; play a key role in falls prevention; and already are facing a 15% payment reduction in 2022 -- must face a 9% payment reduction;

2. Not addressing the kinds of small entities, including physical therapy providers, that this rule affects; and

3. Providing no explanation regarding any meaningful options that could achieve its objectives with less significant adverse economic impact on small entities.

I strongly oppose the 9% payment reduction to physical therapy services and request that the agency immediately halt implementation of the reduction.

Rather, CMS should work with Congress to develop a solution that will allow the changes to E/M services to proceed, while at the same time preventing cuts to physical therapy providers and dozens of other specialties. Waiving budget neutrality requirements for the E/M policy is the most straightforward solution.

It will provide a critical reprieve for a broad array of physicians and nonphysician health care providers who are facing substantial payment reductions in the coming months, while also allowing payment increases to go forward for those who provide E/M services to Medicare beneficiaries in a standalone office visit or outpatient setting.

I stand ready to work with CMS to identify a solution that will safeguard the financial health of the Medicare program while ensuring that beneficiaries have adequate access to high-quality physical therapy services in the future.

Thank you for your consideration.

Patrick Withrow, PT, DPT

Director of Clinical Education

Department of Physical Therapy

Rosalind Franklin University

North Chicago, IL

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The proposed rule can be viewed at: https://beta.regulations.gov/document/CMS-2020-0088-1604

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