CMS Update: Court Order Delays Implementation of Key Provisions

DALLAS – In response to a lawsuit filed by NATA last week, the U.S. Department of Health and Human Services has agreed in a court order to delay implementing key portions of a new rule from the Centers for Medicare & Medicaid Services.

Parts of CMS’ rule governing "incident to" therapy services will be suspended until the court issues a decision on NATA’s motion for preliminary injunction or until July 22, 2005, whichever comes first. A hearing is scheduled July 1.

"I’m encouraged that CMS has delayed implementation of the rule change," said NATA President Chuck Kimmel, ATC. "This is certainly a good sign, but it’s not victory yet. We need to continue to express our concerns. We feel it’s wrong to allow this change to be implemented at any point, because it limits our ability to do what we’re educated, certified and – in most states – licensed to do as athletic trainers."

The rule at issue, published in CMS’ Medicare Carrier’s Manual May 6, was set to take effect June 6. In it, CMS decided to no longer pay for therapy services incident to a physician’s services unless the provider is a physical therapist, occupational therapist or speech/language pathologist.

NATA contends such a decision improperly restricts athletic trainers’ ability to practice. If the rule were allowed to take effect, doctors would not be able to bill Medicare for treatment provided by athletic trainers. NATA’s lawsuit seeks to prevent this practice limitation.

In its suit, NATA maintains the CMS rule nullifies more than 35 years of policy – and contradicts the statutory provision authorizing Medicare reimbursement for therapy services performed by qualified providers "incident to" physicians’ services. The suit claims the CMS rule would also make it harder for the public to get medical care because it shrinks the pool of qualified personnel who can provide therapy services.

By filing the lawsuit, NATA seeks to stop further improper job losses and demotions of its members. While the suit seeks to set aside the provisions at issue, it also goes a step further by asking that HHS (through CMS) be required to specify that athletic trainers and other allied health professionals are authorized to provide therapy incident to a physician’s services.

NATA’s grassroots efforts to dissuade CMS from implementing its new rule will continue while the lawsuit is pending.

June 3, 2005