Lymphedema Legislative Summary (As of Nov 22, 2005): Jan – Mar, 2006

By: Robert "Bob" Weiss, MS, Legislation Committee and LE Advocate

MEDICARE POLICY CHANGE

The Centers for Medicare and Medicaid Services (CMS) recently revised the Medicare Benefit Policy Manual (Pub 100-02), Chapter 15, Sections 230.5 concerning the definition of therapy services, the qualifications of therapists, and therapy services provided incident to a physician or non-physician practitioner. Effective June 6, 2005 nurse practitioners, licensed massage therapists, athletic trainers, home health practitioners and others who may be fully trained and qualified in lymphedema therapy may no longer bill Medicare for treating lymphedema patients incident to a physician.

The effect of this change is to deny payment to approximately one third of the available trained and qualified lymphedema therapists providing services to Medicare beneficiaries. Lymphedema treatment clinics are being forced to close, and patients are being denied access to therapy services.

The response to this unintended consequence of the Medicare policy change was to galvanize the lymphedema community in opposition to the ruling. The Lymphedema Stakeholders PAC was formed (see News and Notes on page 23) and joined a coalition of like-minded organizations in a coordinated effort to reverse this ruling. On November 16 the Coalition to Preserve Patient Access to Physical Medicine and Rehabilitation Services held a Press Briefing in the Rayburn House Office Building, followed by individual constituents' visits to their representatives in Congress to seek legislative redress.

FEDERAL BILLS

1. 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 7-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.

2. ANNUAL LIMITS ON THERAPY. Current Medicare policy covers manual lymph drainage (MLD) as a rehabilitative procedure which falls under an annual limitation of $1500 imposed by the Balanced Budget Act of 1997.

Title VI, § 624 of H.R.1 "Medicare Prescription Drug, Improvement, and Modernization Act of 2003" (MMA) signed into law 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 GAO never made a recommendation. The 2006 annual cap will resume at $1750.

S.438 Ensign/H.R.916 English "Medicare Access to Rehabilitation Services Act of 2005" would permanently remove these caps. Both sit in Committee (Senate Finance & House Health).

3. MEDICARE APPEALS RIGHTS. CMS published new Medicare appeals rules in 2002 which severely restrict the powers of Medicare Administrative Law Judges (ALJs) who were the first level of appeal where a beneficiary could obtain a fair hearing, and where over 50 percent of rulings were in the beneficiary's favor. Additionally 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, §931 of the MMA.

S.1335 Dodd Justice for Medicare Beneficiaries Act of 2005-- amends title XVIII of the Social Security Act to preserve access to appeals before administrative law judges under the medicare program and restores some of their discretionary powers. Referred to Senate Committee on Finance.

4. ACCESS TO PHYSICAL THERAPISTS ACT. S.647 Lincoln/H.R. 1333 Hart "Medicare Patient Access to Physical Therapists Act of 2005" would allow "qualified" physical therapists to perform CPT procedure 97140 (manual lymph drainage) within their scope of practice without direct physician supervision, but not necessarily requiring their specialized training or qualification to provide CDT/MLD. The bills were both sent to Committee (Senate Finance and House Health Subcommittee).

Title VI, Section 647 of the MMA provided for a study of the feasibility and advisability of allowing direct access to physical therapy services. After completing their study, the Medicare Payment Advisory Commission (MedPAC) has recommended against direct access.

STATE BILLS

1 MASSACHUSETTS.
S.582 Fargo--provides for comprehensive treatment of lymphedema. This bill passed in the Massachusetts Senate last session but died in the Assembly. It has been re-introduced in 2005 and has been referred to the joint Financial Services Committee.
S.1218 Spilka—An Act Relative to Women's Health and Cancer Recovery. WHCRA of 1998 conformance bill. Referred to Committee on Public Health.

2. NEW YORK.
A5911Kolb-- provides "reimbursement for costs associated with diagnosis and treatment of lymphedema including costs of compression sleeves used to alleviate the pain and discomfort of lymphedema."—currently in Assembly Insurance Committee.
A5003 Cohen/ S3015 Fuschillo --Provides coverage for diagnosis and treatment of lymphedema to current medical standard of care including supplies and MLD, qualification standards for therapists and fitters, patient education. Also conforms NY law to the WHCRA of 1998 with regard to lymphedema treatment.-- currently in Insurance Committees;
A7398 Carrozza/S4832 Padavan-- Signed into law 08/02/05. Provides for the Health Department "to conduct education and outreach programs for consumers, patients and health care providers relating to lymphedema, including the causes and symptoms of lymphedema, the value of early detection, possible options for treatment including their benefits and risks, and other relevant information and the recommendation that hospitals treating breast cancer patients implement a lymphedema alert program by placing a bright pink wristband on the patient's affected arm."

3. CALIFORNIA. 
AB-213 Liu provides coverage for differential diagnosis of lymphedema, treatment in accordance with current standards, medically required garments, bandages, shoes and orthotic devices, patient education, standards for therapists and garment fitters and patient protection against arbitrary denials.—currently in the Assembly Health Committee. California Health Benefits Review Program analysis of fiscal, medical and public health impact was completed. Bill was amended 04/20/05 to remove qualification requiements for lymphedema therapists. Health Committee hearing was postponed.

4. CONNECTICUT. 
Proposed Senate Bill No. 119 Harp in the Connecticut Senate providing "that the general statutes be amended to require each health care insurer licensed in Connecticut to provide inexhaustible coverage for the diagnosis and treatment of lymphedema." –currently in the Committee on Public Health. No action since the public hearing of 03/04/05.

5. GEORGIA. 
HR 641 Walker – "House Study Committee on Causes and Treatment of Lymphedema" was adopted by the House on 03/29/05. A three-member committee was formed to consider whether or not legislative action should be recommended to mandate coverage of lymphedema treatment. NLN and the Lighthouse Lymphedema Network Legislative Committee supported the first two Committee meetings with expert testimony by physicians, patients and lymphedema activists on behalf of the legislation. Findings and recommendations, with suggestions for proposed legislation, if any, are required to be made on or before December 31, 2005.