Court of Appeals affirms lower court's ruling
July 6, 2006
NATA’s challenge of the Centers for Medicare and Medicaid Services (CMS) “incident to” rule sustained a setback this week as the Fifth Circuit Court of Appeals affirmed a lower court’s ruling that it did not have jurisdiction to hear the case. The CMS rule improperly restricts who may provide therapy services “incident to” – or under the supervision of – a physician.
In its July 3 decision, the Court of Appeals confirmed that NATA has standing to challenge the CMS rule, a positive finding, but determined the district court does not have jurisdiction to consider NATA’s claims. The Court reasoned that physicians have adequate incentives to challenge the rule on behalf of adversely affected athletic trainers, even though athletic trainers cannot themselves appeal directly to CMS.
“We are disappointed with this outcome,” said NATA President Chuck Kimmel, ATC. “We remain committed to working aggressively to protect our members’ right to provide valuable services in every appropriate setting.
“We are carefully evaluating all our options and planning our next steps in defending our members.”
NATA is dedicated to protecting athletic trainers’ full scope of practice and their right to provide physical medicine and rehabilitation services consistent with their qualifications, including in clinical settings under the supervision of physicians. Importantly, the Court of Appeals did not determine that the CMS rule is lawful or that it would survive a legal challenge. That has yet to be decided.
The original lawsuit was filed in May 2005 after CMS announced it would no longer pay for therapy incident to a physician’s services unless the provider is a physical therapist, occupational therapist or speech/language pathologist. Under this rule, doctors cannot bill Medicare for treatment provided by athletic trainers or a host of other health care practitioners. It’s estimated that more than 1,100 athletic trainers have lost their jobs as a direct result of the rule.