Neg Reg: We Have Met the Enemy, and It Is Us!
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
hhill@cms.hhs.gov
www.cms.hhs.gov/faca/prosthetic/charter.asp
or contact me at 561.394.6514; www.oandp.com/barr. 
Table Of Contents - May 2003
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