Why CMS Should Reconsider Scope of Practice

The Center for Medicare and Medicaid Services (CMS) recently announced they were seeking input regarding its regulations that limit certain health care professionals from practicing at the top of their license. Nowhere is the impact of these limitations more evident than in the area of physical medicine and rehabilitation. Physical medicine and rehabilitative services – physical therapy - are a valuable component of the health care delivery system. These therapeutic procedures, many of which fall between CPT codes 97110 and 97530, can help patients recover from injury, improve mobility, avoid surgery, or reduce the need for opioids in pain management. Their utility and efficacy in addressing patient needs is further evidenced by the vast number of payers – both federal and commercial – that cover physical therapy when it is deemed medically necessary. The availability of multiple revenue streams, via different payers, for physical therapy providers can be both a blessing and a burden – a burden often times directly related to scope of practice. Each payer may have different coverage policies for the same services (based on CPT codes); therefore, a provider that treats patient from multiple payer sources in the same manner may subject themselves to some form of liability. 

Coverage Policies:

Most, if not all, payers predicate payment for physical therapy on medical necessity. Although the characteristics of a payer’s patient base may greatly differ from one to the other, each payer typically defines medical necessity in much the similar fashion. The greatest difference among the coverage policies, often-times, relates to scope of practice and who can actually perform or supervise the therapy modalities. Below is a breakdown of various payer’s policies regarding what level of health care professional can provide and/or supervise therapy:

Medicare:

Medicare covers physical therapy when personally performed by a number of providers including; licensed physical therapists (PT), occupational therapists (OT), licensed PT or OT assistants when supervised by a licensed PT or OT, Medical Doctors (MD), Doctors of Osteopathy (DO), and qualified Non-Physician Practitioners (NPP) (including advanced nurse practitioners and physician assistants). Medicare does allow other “qualified” personnel to provide therapy services when directly supervised by a physician or NPP; however, Medicare narrowly defines the other qualified personnel as people who have met the educational and degree requirements of a licensed professional but is not licensed. Services performed by anyone other than those specified – even if directly supervised – may not be billed to the Medicare Program. Therefore, unless the unlicensed individual actually providing the service has a degree related to an acceptable licensed profession and is properly supervised, Medicare requires the person performing the one-on-one patient interaction to be licensed. Furthermore, Medicare does not allow for certain license types that may be authorized to perform physical therapy under their scope of practice (i.e., chiropractors) to even perform the service.  

Department of Labor:

The Department of Labor (DOL) requires all services – including physical therapy – to be professionally performed and in accordance to “industry standards”. DOL defines the industry standard as precluding the charging of a professional service when it was performed by a paraprofessional or aid. While this means DOL allows NPPs acting within the scope of their practice to perform physical therapy – including chiropractors – the therapy must be performed by the licensed individual and may not be delegated to a non-licensed person. Although DOL differs slightly from Medicare in that it allows for chiropractors to perform physical therapy, they are similar in that they require a licensed individual to have direct one-on-one patient contact.

Tricare:

Tricare coverage appears to be less well defined then Medicare or DOL. According to the Tricare Policy Manual, if physical therapy is performed by someone other than a physician, the authorized individual professional provider acting within the scope of his/her license should refer the patient for treatment and supervise the physical therapy. The sparsity of guidance within the Tricare manual would seem to indicate that a state’s various Practice Acts would dictate what provider types can provide therapy services and who they may supervise. This would mean that provider types such as physical therapists or chiropractors can supervise appropriate personnel – including unlicensed aides or techs depending on the state’s scope of practice – while they provided the service.

Texas Medicaid:

The Texas Medicaid Program will cover physical therapy services provided by either a physician or PT acting within the scope of his/her practice. In Texas, a PT can supervise a licensed physical therapy assistant (PTA) or a physical therapy aid (non-licensed). Texas Medicaid does allow for auxiliary personnel (aide, orderly, technician, or student) to participate in the physical therapy treatment when appropriately supervised. However, providers may not bill for services provided solely by the auxiliary personnel. Again, Medicaid is a Program that does not allow chiropractors to fully perform under their scope of practice. While it does allow personnel; such as aides or techs, to perform the service, the licensed health care professional that bills for the service must have some one-on-one patient contact during the encounter.

Texas Worker’s Compensation Program:

The Texas Worker’s Compensation Program incorporates some services that are unique to the Program; however, for those services that are not unique, it utilizes Medicare payment policies. There are a couple important exceptions with regards to the following of Medicare policies. First, chiropractors may be reimbursed for services provided within the scope of their act. Second, when Medicare policies conflict with provisions of the Worker’s Compensation Act, the Act takes precedence. As a result, while the Medicare Program states that most unlicensed personnel are precluded from performing physical therapy, a Texas Worker’s Compensation treating doctor (MD, DO, and DC) can prescribe treatment to be rendered by persons not licensed to provide health care who work under the direct supervision and control of the treating doctor. This would allow for any person the treating doctors deems fit to provide physical therapy – based on training and experience – to perform one-on-one treatment while be properly supervised. 

Commercial Insurance:

Due to the large number of commercial insurers, Blue Cross and Blue Shield of Texas (BCBS TX) will be used as an example of commercial insurance physical therapy coverage policy. Blue Cross and Blue Shield of Texas dictate physical therapy must be delivered to the patient individually by a “qualified provider”. A qualified provider is one who is licensed where required and includes PT, OT, and chiropractors. BCBS TX states that physical therapy can be performed by either the licensed personnel or by assistive personnel under the supervision of the licensed personnel. The provision allowing for the service to be performed by a non-licensed person does require that the services provided do not exceed his/her education or training level.  Much like Texas Worker’s Compensation, BCBS TX policy seems to embrace a more complete version of the scope of practice for professionals like PTs and chiropractors.

Issue:

The various coverage policies run the spectrum from the strict (DOL) to the more relaxed (Texas Worker’s Compensation) with the more relaxed programs recognizing a greater scope of practice for non-physician practitioners. A provider operating at the more relaxed end of the spectrum and wishing to expand their sources of revenue may opt into one of the stricter programs, unaware that the requirements are different. Because the provider unknowingly may be using personnel that are not allowed to perform the service, they have opened themselves up to a potential overpayment – or worse, civil or criminal liability. 

The potential for this is made even more realistic when one considers that not even the federally funded programs (Medicare, DOL, Tricare, and Medicaid) have conforming policies. An entity that employs a chiropractor for the provision of physical therapy modalities (as allowed by a state’s scope of practice) may be fine when seeking payment from DOL or Tricare but may become the target of an investigation when it comes to the Medicare or Medicaid Programs. A physical therapist may supervise physical therapy aides who individually treat patients – a practice that appears acceptable under Tricare and Texas Medicaid (Medicaid requires it cannot be solely provided by the aide) – but is considered non-covered under DOL and Medicare (unless aide has educational and degree requirements). These differences are exacerbated when you consider many providers accept commercial insurance which appear to cover a greater breadth of a non-physician practitioner’s scope of practice (as does some state’s worker’s compensation acts). The liability created by these differences related to scope of practice can also present itself in the area of mergers and acquisitions; especially when the acquiring entity decides to assume any of the selling entity’s contracts.

Conclusion:

Providers that wish to increase revenue by contracting with other payers or entering into an M&A transaction may need to evaluate whether the transaction will generate the desired profit or if the potential need to hire more licensed personnel to provide the service will result in unsustainable overhead. Only by truly understanding the differences can a physical therapy provider comprehend whether the decision to expand will produce the desired effect. Differences in coverage policies is not limited to physical therapy; therefore, providers of all types should consult with a knowledgeable and experienced professional before attempting to expand and grow. The decision to expand could require changes to personnel or an adjustment to the business’s delivery of the service so as to account for the differences in coverage. Not doing so could costly. CMS should also understand the impact of these disparate polices and reimburse health care professionals in a manner more commiserate with their respective Practice Acts. By doing so, CMS may increase patient access to necessary services and decrease fraudulent payments. 

Matt Lawhon, JD

Owner

M B Lawhon Law Firm PLLC

www.mblawhonlaw.com