Caregivers fret as Congress, CMS duel over payment caps

Tussles between the legislative and executive branches play out most publicly over high-stakes issues that cut to the core of the Constitution. More often, though, Congress and federal agencies push and shove over more obscure matters.

A face-off between a cadre of powerful lawmakers and the Medicare agency over physical-therapy benefits illustrates the gamesmanship that can characterize the relationship between the people who write the laws and the people who apply them.

Since the passage of the Balanced Budget Act of 1997, Congress and the Centers for Medicare & Medicaid Services (CMS) have pointed fingers at each other over who is responsible for taking control of rising spending on physical, speech and occupational therapy for Medicare beneficiaries.

The 1997 law established a hard-dollar cap on how much therapy anyone can get in a year. Lawmakers acted out of concern that Medicare spending on the services was rising without a clear reason why. But the cap has never really been in force, having been postponed numerous times by both Congress and the agency.

Under a policy that took effect Jan. 1, Medicare beneficiaries are limited to $1,740 a year in physical-therapy services and another $1,740 a year in occupational or speech therapy. Strokes and joint-replacement surgeries, for example, can necessitate intensive rehabilitation regimens.

Hill staffers who have worked on the issue blame the agency.

“CMS has done nothing in seven years” since the Balanced Budget Act passed, a House Republican aide said. The act mandates that Medicare figure out how to resolve the dual aims of controlling costs while maintaining access to the services. “It forces CMS to deal with the issue,” the House aide said.

A Senate Republican aide conceded, “It’s sort of a backward way of getting there.”

With the passage of the budget-reconciliation bill last month, Congress punted back to CMS. The bill includes provisions requiring Medicare to set up a system to make sure people get medically necessary treatments by establishing potentially broad exceptions to the cap. President Bush signed the bill into law yesterday.

The budget-reconciliation bill is expected to would exempt most people who need therapy, congressional aides and representatives of medical provider groups said. To achieve that objective, CMS has to devise and put in place a potentially complicated process in a very short period of time.

In the meantime, patients could be forced to wait for needed therapy and therapists could find themselves in the untenable position of either turning patients away or providing the care without being paid.

“For the last 30 days, in the real world, there’s been bedlam,” said Peter Clendinin, the executive vice president of the National Association for the Support of Long-Term Care. Provider groups and congressional aides said that reports are starting to trickle in about patients who are on the brink of losing their therapy benefits.

“This is the type of issue that becomes a crisis and gets a response, and it isn’t quite a crisis yet,” said Alan Rosenbloom, president of the Alliance for Quality Nursing Home Care, a trade group that represents for-profit nursing-home companies.

The Senate staffer also acknowledged that a policy that broadly exempts beneficiaries from the caps does not save the federal government very much money compared to simply lifting the limits permanently. The Congressional Budget Office estimated that eliminating the caps would cost about $700 million and that allowing medically necessary exceptions would cost about $500 million.

“There’s a general perception that the caps are somewhat arbitrary,” the House aide acknowledged.

“It wouldn’t be a whole lot different” if the caps were scrapped, agreed Jim Smith, senior vice president for policy and government relations for the American Health Care Association, which represents nursing homes.

A CMS spokeswoman declined to comment, except to say that the agency would move ahead with implementation of the new policy as quickly as possible, as soon as President Bush signed the budget bill.

In a letter to the chairmen of the House Ways and Means, House Energy and Commerce and Senate Finance committees last month, Herb Kuhn, the director of CMS’s Center for Medicare Management, sought to assure the members that the agency was ready but offered little by way of detail.

“We are looking at several options,” Kuhn wrote.

Provider groups greeted the CMS letter hopefully, predicting that the agency’s actions would reflect the concerns they outlined at a meeting with Medicare officials last month.

“We were very encouraged by the ideas,” Smith said. “Most of the current patterns of usage will continue to be valid and approved and acceptable,” he said. Patients recovering from strokes would be exempted, he said, but those seeking treatment for tennis elbow might need to pay for more of their care.

“Most of the people would qualify for an exception,” said Dave Mason, vice president of government affairs for the American Physical Therapy Association.

The game of hot potato will not be over even when Medicare sorts out a policy. Congress has to return to the issue this year.

“This is, I think, a temporary solution,” the House GOP aide said. Congress, CMS and the providers will have to go right back to work for a permanent policy.

Two days after the House passed the budget-reconciliation conference report, the American Occupation Therapy Association issued a statement: “We look forward to working with Congress in 2006.”