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AOTA Year-End Legislative Update for 2022
(Updated December 2022)
ADVOCACY
End of year legislation includes major wins and continued challenges for occupational therapy
Heather Parsons 12/21/2022
Yesterday, Congress unveiled a massive $1.7 trillion legislative package, the Omnibus Budget Reconciliation Act of 2023 (the omnibus), that both funds the government through FY 2023 and includes significant new healthcare policies. While the bill contains major new wins and opportunities for occupational therapy, it fails to fully address ongoing cuts to Medicare reimbursement despite massive advocacy efforts by AOTA and other provider groups. Here are some of the key provisions in the omnibus.
Wins
Allied Health Workforce Diversity Program:
The omnibus creates a new program first proposed in the Allied Health Workforce Diversity Act (H.R. 3320/S. 1679). This program will provide grant funding to accredited higher education programs of occupational therapy respiratory therapy, physical therapy, speech language pathology, and audiology to support their efforts to increase opportunities for students from underrepresented and disadvantaged backgrounds. Modeled after a similar grant program for nurses, funding would support efforts by the program to attract, recruit, and retain individuals underrepresented in these professions.
Mental Health Victories:
The omnibus included a new Medicare mental health benefit: intensive outpatient services. This new benefit may significantly increase the ability of occupational therapy practitioners to provide community mental health services. Intensive outpatient services would be provided at federally qualified health centers (FQHCs) or rural health clinics. The requirements for intensive outpatient services mostly mirror current Medicare partial hospitalization requirements that already include occupational therapy services as part of the benefit. The new intensive outpatient services benefit opens the door for occupational therapy practitioners to provide mental health services at FQHCs and rural health clinics. In fact, if the regulations also mirror those for the partial hospitalization benefit, occupational therapy would be a required service. AOTA will continue to analyze this new benefit and follow the development of these regulations.
Additionally, in 2015, occupational therapy education programs were added to the list of programs eligible to apply for mental and behavioral health training grants run by the Health Resources and Services Administration (HRSA). Unfortunately, HRSA has only allowed master’s-level programs to apply for these grants; however, the omnibus includes a technical fix that will allow doctoral-level programs to apply as well.
Extension of Medicare Telehealth Waivers:
The omnibus extends current Medicare telehealth waivers that allow occupational therapy practitioners (OTPs) to provide Medicare telehealth services through the end of 2024, regardless of the status of the ongoing public health emergency (PHE). This extension will allow occupational therapists and occupational therapy assistants to provide services via telehealth to Medicare beneficiaries for all of 2023 and 2024. Previously, the telehealth waivers allowing OTPs to provide these services were scheduled to end 151 days after the PHE formally expires which is anticipated at some point in 2023.
Lymphedema Treatment Act:
The omnibus includes a provision to require the Centers for Medicare & Medicaid Services (CMS) to cover compression garments and other commonly prescribed items for the treatment of lymphedema. While CMS recognizes the importance of compression garments in lymphedema treatment, only Congress could make these items a covered benefit. Thanks to this legislation, when occupational therapy practitioners treat a Medicare beneficiary with Lymphedema, they can be assured that person will have access to the supplies needed to maintain that treatment and reduce the long-term effects of lymphedema.
Challenges
Medicare Part B Payments:
CMS’s final 2023 Medicare Physician Fee Schedule (MPFS) included cuts to services provided by occupational therapy practitioners and the majority of other Medicare health care providers. This 4.5% cut to the fee schedule’s conversion factor is in addition to cuts to therapy providers in the fee schedule from 2020 and 2021. A strong provider coalition, including AOTA, worked together to urge Congress to stop the full cut and support healthcare providers during this time of increased expenses due to inflation. Despite thousands of health care providers contacting Congress, the final omnibus does not stop this full cut. They did, however, take steps to reduce the size of the cuts: for 2023, the conversion factor will be cut by 2% (instead of 4.5%) and for 2024, they have increased the conversion factor by 1.25%. It is not known what the 2024 conversion factor will be.
Finally, all Medicare providers were also facing a possible 4% cut due to a budgetary process known as “PAYGO.” The omnibus waives PAYGO requirements and prevents therapy practitioners across all Medicare settings from facing a related 4% reduction.
Occupational Therapy Assistants:
In October 2021, the Stabilizing Medicare Access to Rehabilitation Therapy (SMART) Act was introduced to help mitigate the impact of Medicare Part B cuts to services provided by occupational therapy assistants (OTAs) and physical therapist assistants (PTAs). One part of the bill would change the supervision of OTAs and PTAs in private practice from “direct” to “general.” This would increase staffing flexibility in those settings and recognize the expertise of therapy assistants. The Senate followed up by introducing a bill (S. 5) that would also change this requirement, while an independent report commissioned by a group representing therapy providers demonstrated that this provision would save the government money. Although multiple key Congressional staff members were interested in this provision, it was not included in the omnibus. We will continue to work for passage in the new Congress.
Opportunities
The 2023 omnibus was a 4,155 page document. Included in the legislation were other opportunities for occupational therapy, including some we may not yet have discovered. Some of these opportunities include:
- A provision to require transparency in how Home Health services are paid for, both from the perspective of how CMS calculates changes to payments under PDGM, and what services home health agencies are providing.
- Increased funding for the 988 suicide prevention helpline program and mental health crisis services.
- A focus on maternal health and maternal mental health — though advocates are continuing to push for broader policies.
- Increased funding for general and special education, and a continued focus on the provision of mental health services in schools.
Advocacy in the New Congress
Over the last three years, the profession has faced significant challenges. In addition to the immense challenges related to COVID, there have been continued cuts to outpatient Medicare payments — which often negatively impact other practitioner reimbursement through Medicaid and private insurance. We are not alone in these challenges, and AOTA has been part of a large provider coalition including surgical specialists, radiologists and other therapy practitioners to oppose these cuts. This group has collectively made it clear that the current payment system is broken, and Congress has indicated that it plans to begin work on reforming the Medicare Part B payment system next year. AOTA is ready to go on offense to fix long standing inequities in fee schedule payments and to ensure that the payment system works for occupational therapy practitioners. We will also build on this end of year momentum and continue to push to support occupational therapy assistants.
Next Steps:
As noted, the omnibus also contained significant victories. Over the next two years, AOTA Federal Affairs will build on this momentum to create opportunities for practitioners across all practice settings. From schools to private practice, home health to mental health, traditional Medicare settings to innovative practices, we will work to advance the profession of occupational therapy and ensure people have access to occupational therapy services. You have been an essential part of these victories, sending more than 7,800 hundred letters to Congress in November and December alone. You can continue this advocacy in the next Congress through AOTA’s Legislative Action Center and follow all of the AOTA policy team’s work on your behalf through the advocacy section of the AOTA website.
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