By: Robert "Bob" Weiss, MS, Legislation Committee and LE Advocate
The following is an update on the status of bills in Congress that impact lymphedema patients and therapists.
- TECHNICAL ERRORS IN THE WOMEN'S HEALTH AND CANCER RIGHTS ACT OF 1998 (WHCRA). No bill is currently proposed to fix textual errors in this 6-year old Act, the worst of which is wording that one must elect reconstructive breast surgery before being eligible for coverage for a prosthesis and treatment of lymphedema.
- WHCRA CONFORMANCE. There are currently no penalties implemented for disregarding the provisions of the WHCRA. H.R.295 Kelly and S.AMDT.567 Biden were introduced to modify the Internal Revenue Code of 1986 to conform it to the WHCRA. (Both bills propagate the errors in the HCRA wording--see paragraph 1 above). H.R.295 sits in committee. The Biden amendment to the 2004 tax bill S.1054 was approved by the Senate but was lost when H.R. 2 (the Tax Cut Bill) was substituted for S.1054 and became P.L. 108-27 on 28 May 2003.
- MANUAL LYMPH DRAINAGE AS MEDICAL TREATMENT, NOT REHABILITATIVE PROCEDURE. Current Medicare policy covers manual lymph drainage (MLD) under "physical therapy and rehabilitative services" or "outpatient physical therapy." As a rehabilitative proce-dure, it falls under an annual limitation of $1500 imposed by the Balanced Budget Act of 1997. S.569 Ensign and H.R.1125 English would permanently remove these caps. Both sit in Committee. Title VI, Section 624 of the Medicare Prescription Drug Improvement and Modernization Act of 2003, H.R.1 (MMA), signed into law in December 2003, placed a 2-year moratorium on therapy caps and called for a GAO report to Congress by October 1, 2004 identifying conditions and diseases justifying waiver of therapy caps. The NLN is drafting inputs to convince the GAO in-vestigator that MLD is a conservative medical treatment and not a rehabilitative protocol when applied to lymphedema treatment, and should be permanently exempted from the therapy caps.
- MEDICARE APPEALS RIGHTS. The Centers for Medicare and Medicaid Services (CMS) published two sets of Medicare appeals rules in 2002. These rules severely restrict the powers of Medicare Administrative Law Judges (ALJs) who are the first level of appeal, where a beneficiary can obtain a fair hearing and where over 50 percent of rulings are in the beneficiary's favor. The Department of Health and Human Services (DHHS) has proposed to place the Medicare ALJs under DHHS and plans for this transfer are covered in Title IX, Section 931 of the MMA. Sen. Stabenow has introduced S.1127 Fair and Impartial Rights (FAIR) for Medicare Act of 2003 to ensure independence of ALJs from CMS. The bill is in the Senate Finance Committee.
- ACCESS TO PHYSICAL THERAPISTS ACT. The APTA is supporting H.R. 792 Crane and S. 493 Lincoln "Medicare Patient Access to Physical Therapists Act of 2003." These bills would allow "qualified" physical therapists to perform procedures such as 97140 (manual lymph drainage) "within their scope of practice" without being under direct physician supervision, but not necessarily requiring specialized training or qualification to do MLD. The intent of the bill is appropriate in the case of rehabilitative services, but it does not have adequate controls when dealing with medical treatment of lymphedema. The bills were both sent to Committee. Title VI, Section 647 of the MMA provides for a study of the feasibility and advisability of allowing direct access to physical therapy services. The Medicare Payment Advisory Commission (MedPAC) must report recommendations no later than January 1, 2005. They will need some help from the lymphedema community in defining required additional training for PT's performing MLD.
- VIRGINIA. The success story of 2003! Virginia House Bill No. 1737 Delegate Leo Wardrup was passed and became law in Virginia January 1, 2004. The new law provides "equipment, sup-plies, complex decongestive therapy and outpatient self-management training and education for the treatment of lymphedema," regardless of cause.
- MASSACHUSETTS. Two lymphedema treatment bills are being considered in Massachu-setts. S.B.848 Fargo and H.B.1309 by Representative Martin J. Walsh of Boston have similar provisions but H.B.1309 also covers treatment by properly trained and licensed massage therapists in addition to physical therapists. Both bills are currently held up in the Joint Committee on Insurance. Contact Chairman Sen. Guy Glodis and urge him to report the bills favorably in the version of H.B.1309.
- NEW YORK. Six bills which have been introduced in the New York Legislature relating to lymphedema: A5458 Carrozza, A4273 Gottfried and S2607 Padavan establish lymphedema wellness education and outreach;A5597 Kolb provides coverage of compression sleeves; and A9208 Cohen/S7005 Fuschillo provide coverage for diagnosis and treatment of lymphedema including supplies and MLD.
A9208 Cohen/S7005 Fuschillo, are currently in Assembly and Senate Insurance Commit-tees. Call your elected NY State representatives and urge them to move these bills out of the Insurance Committees and pass them into law.
To find out more about the above legislation and how you can take action, contact Bob Weiss via email at: lymphactivist [at] aol [dot] com.