Neg Reg: We Have Met the Enemy, and It Is Us!

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By Anthony T. Barr

(Editor's note: The sections in bold type below provide additional information from Anthony "Tony" Barr not included in the print issue due to space limitations.)

As many of the 21 members and 21 alternate members appointed to the Negotiated Rulemaking Committee hearings last October prepared to do battle for establishing the highest qualifications and mandatory educational standards to provide O&P services for Medicare reimbursement, two national organizations joined the committee.

 The American Physical Therapy Association (APTA) and the American Occupational Therapy Association (AOTA) are both honorable professions and contribute greatly to patients and to their perspective fields. However, both are claiming full qualification to provide all comprehensive O&P services for their licensed members without further educational training or credentialing .

Pursuant to the federal statue, Section 427 of BIPA 2000, a qualified practitioner is defined as:

A physician, a qualified physical or occupational therapist, and a state-licensed orthotist or prosthetist; or in states that do not issue those licenses, a trained individual who is either : (1) certified by either the American Board for Certification in Orthotics and Prosthetics (ABC) or the Board for Orthotist/Prosthetist Certification (BOC), or (2) is credentialed by a program that the US Secretary of Health and Human Services (HHS) determines, in conjunction with appropriate experts, has sufficient training and educational standards.

Both APTA and AOTA assert that "qualified physical therapist" and "qualified occupational therapist" are terms used in the federal legislation and regulations to mean "licensed." Thus it is argued that such practitioners, by virtue of their license, are automatically qualified for purposes of Section 427.

I do not believe this assertion, and neither do most of the NegReg committee members, O&P practitioners, and a great many physical and occupational therapists.

We also do not believe that it was the intention of Congress to exempt a specific allied healthcare profession from meeting the standards previously established by the HHS Secretary. We believe that Congress, in using the term "qualified physical or occupational therapist," clearly intended that a physical or occupational therapist must meet the same standards as those required of other allied healthcare professionals who provide prosthetic and orthotic care.

If you think this is scary, APTA has introduced a legislative amendment in California and Kansas to allow physical therapists to actually prescribe O&P devices! Both were submitted in January in their perspective states after the NegReg hearings were started.

The Barr Foundation's position is that any allied health professional who seeks qualification for Medicare and /or Medicaid reimbursement under section 427 of BIPA 2000 should be required to demonstrate his/her competency based on education, training, and experience by undertaking and successfully passing an objective and psychometrically sound examination that properly address the provision of prosthetic and certain orthotic services.

Drawing a line in the sand NOW is crucial in order to not set a precedent in exempting these two professions from being subject to the law qualifying O&P providers for Medicare reimbursement.

If this is allowed for federally funded Medicare programs, all state laws will likely soon be modified as proposed in California and Kansas. Medicaid and private insurers will soon accept the same lack of qualification guidelines.

Amendment to the California State Senate Bill SB 77 re: Section 1 which is to be proposed to be added to the Business and Professions Code to read:

 Sec 2: Section 2620 is added to the Business and Professions Code to read:

 Sec 2620. The "practice of physical therapy" means all of the following:

 a) Examining, evaluating, and testing individuals with mechanical, physiological and developmental impairments, functional limitations and disabilities, or other health and movement-related conditions in order to determine a diagnosis, prognosis, plan of therapeutic intervention, and to asses the ongoing effects of intervention.

 b) Alleviating impairments, functional limitations, and disabilities by designing, implementing, and modifying therapeutic interventions that may include, but are not limited to, the following:

 1) Therapeutic exercise.

 2) Functional training in self-care and in home, community, or work integration or reintegration.

 3) Manual therapy, including soft tissue and joint mobilization or manipulation.

 4) Therapeutic massage.

 5) Prescription, application, and fabrication of assistive, adaptive, orthotic, prosthetic, protective, and supportive devices and equipment.

Physicians who support a high degree of educational standards for O&P providers and who write the prescriptions would not likely support this legislation. Most physical and occupational therapists I have spoken with also are not in favor of it. I don't believe either of these national associations reflect the view of the majority of licensed physical and occupational therapists.

If the NegReg Committee fails to reach consensus-which looks fairly certain if APTA and AOTA refuse to accept additional educational requirements in the applied science of O&P and application and delivery of comprehensive O&P services-the decision would be left to the Centers for Medicare & Medicaid Services (CMS) to determine provider qualifications.

This could quite possibly open the door even wider to less-qualified providers.

I have provided my perspective as a consumer member of the committee.

I ask you, as practitioners and as consumers/patients of these highly specialized services, to provide your views by writing or e-mailing CMS at

The Centers For Medicare, Medicaid Services HHS
c/o Hugh Hill, MD
Chief Medical Officer
7500 Security Blvd
Baltimore, MD 21244

or contact me at 561.394.6514;