AARC Legislative Agenda Frequently Asked Questions

AARC Virtual Lobby Campaign

For years, the AARC’s legislative agenda has focused primarily on advocating on a single issue or one piece of legislation that includes respiratory therapists (RTs), like our advocacy on the BREATHE Act in 2019. We also hold Virtual Lobby Campaigns in which we pick a certain timeframe to send messages to Congress, especially in conjunction with our Hill day.Recently, Congress has focused on policies that would improve the care delivered to individuals with multiple chronic conditions and debilitating diseases. This is an exciting time for the profession, and we need to make our voice heard on multiple fronts. Advocating for a variety of initiatives keeps the respiratory care profession on the minds of Congressional leaders and bolsters our image as experts in pulmonary care, and it does not take away from our main objective of getting legislation passed that includes RTs as telehealth practitioners.

Advocacy is a year-long effort and, as we move to the end of the year and into 2020, we want to change our approach. There are several bills we want to keep on our advocacy radar screen and which we plan to seek co-sponsorship through separate messages to the Hill. Our advocacy webpage on AARC.org is being revamped and we are working on new messaging for our TAKE ACTION page. These FAQs provide you with additional information that can make our advocacy efforts a success.

Note: Since these FAQs were developed, CMS has decided to remove noninvasive ventilators from competitive bidding for the round beginning Jan. 1, 2021 due to the COVID-19 pandemic and public concern regarding availability of ventilators. Therefore, advocating for H.R. 4945, the Safeguarding Medicare Access to Respiratory Therapy (SMART) Act is moot. It has been removed from our TAKE ACTION page.

Hill Day 2020

What are the dates for AARC’s Hill day in 2020?

In 2020, a briefing on our legislative agenda will be held on Monday, May 4, 2020. Meetings on the Hill will be held on Tuesday, May 5, 2020. Representatives who advocate for AARC’s legislative agenda both at home and in Washington, DC are members of our Political Action Contact Team (PACT), comprised of volunteers selected from each state who represent the RTs in their state, the members of their State Affiliate, and AARC as the national organization.

I have heard that next year Members of Congress will be on recess during AARC’s Hill day. Why should representatives come to DC if the Members are in their district offices?

Unfortunately, we have no control over the Congressional calendar. When we originally picked the dates for our 2020 Hill day, and in conjunction with available hotel dates, Congress was expected to be in session. However, we have learned the House added an additional recess week that coincides with our Hill day and that of the Allergy and Asthma Network and we cannot change that. The schedule for the Senate shows they will be in town. Because this is an election year, we could see additional changes.

While House members will be in their District offices, their Washington staff will still be in DC. It is important for state affiliates to keep in mind that key health and legislative staff in each Congressional office, whether it is the House or the Senate, have considerable influence on what positions members of Congress take on issues. They are the ones who prepare prior to the meetings, have knowledge of the issues, and advise the members. Last year, members were also in recess and yet, many of our PACT representatives told us it was one of the best year’s they had experienced, as the staff were more attentive and less stressed since their bosses were away.

While it is certainly nice to have photos with Congressional Members for states to put on their websites, even if Members were in town and you had scheduled a meeting, there is no guarantee that on the day of the meeting, the Member is going to be available. Roll call votes and other matters often keep them away from the office. State affiliates should support the AARC’s legislative agenda because it impacts the profession and respiratory therapists nationwide and, most important, it impacts our patients. Members’ absence should not be a reason to stay home!

Throughout the year, when Congress is in recess, State Affiliates are reminded that those are excellent opportunities to visit district offices or attend town hall meetings to gain additional support for the AARC’s initiatives and we encourage you to do so.

H.R. 2508 — The BREATHE Act
(Better Respiration through Expanding Access to Tele-Health)

Is advocating for House co-sponsorship of the BREATHE Act still a priority?

As of mid-December 2019, we had 45 co-sponsors of H.R. 2508, the BREATHE Act, which is a testament to our grassroots efforts and our members’ participation in targeted messaging. Now that the Creating Opportunities Now for Necessary and Effective Care Technologies (CONNECT) for Health Act has been introduced (herein referred to as the CONNECT Act, our advocacy strategy will be changing moving forward. The original co-sponsors of the BREATHE Act, i.e., Representatives Mike Thompson (C/D), Mike Kelly (R/PA), TJ Cox (D/CA) and Earl L. “Buddy” Carter (R/GA), were pleased to have language allowing respiratory therapists to furnish telehealth services in the CONNECT Act, which was a result of the bipartisan support for the BREATHE Act. Our primary goal early on will be to ask co-sponsors of the BREATHE Act to co-sponsor the CONNECT Act. We are developing specific messaging to those House members who are on the BREATHE Act co-sponsor list.

Will there be any effort to get a Senate companion to H.R. 2508?

No. During meetings on the Hill, our lobbyists learned that the Senate’s preference was to include RTs in the CONNECT Act and not to introduce a separate companion bill to the House BREATHE Act. During our grassroots efforts during late August, we targeted 14 Senators identified by our lobbyists as having the potential to add RTs as telehealth practitioners to the Senate version of CONNECT. Five of the 14 Senators we targeted are co-sponsors of the bill.

H.R. 4932 and S. 2471 – The Connect Act
(Creating Opportunities Now for Necessary and Effective Care Technologies)

What is the CONNECT Act and why should I support it?

H.R. 4932 and S. 2741, referred to as the CONNECT Act, are identical comprehensive telehealth bills introduced in Congress on October 30th by key members of the House and Senate Congressional Telehealth Working Group that provide for the expansion of telehealth in a variety of areas. The bill is supported by over 120 organizations, including the AARC. A previous version was introduced in 2017 and several provisions were incorporated into the Medicare extenders package, which was passed as part of the Bipartisan Budget Act of 2018.

This year’s bill is designed to further advance the use of telehealth in Medicare by lifting certain geographic restrictions and permitting waivers of telehealth provisions when certain criteria are met. In a November 2018 Report titled “Information on Medicare Telehealth” sent to Congress by the Centers for Medicare and Medicaid Services (CMS), research found that telehealth services expanded access to care, improved the quality of care, and reduced spending. The bill is designed to address those findings.

Key among the provisions is section 14 that would allow health care professionals who are not currently eligible to furnish telehealth, such as respiratory therapists, to furnish telehealth services as part of the health care delivery models being tested by CMS’ Innovation Center. This is an excellent opportunity to expand the reach of RTs in settings other than the physician’s office, which is the cornerstone of the BREATHE Act.

Is there any possibility under the CONNECT Act that we could create a telehealth model like the one proposed as part of the BREATHE Act?

Section 15 of the bill encourages the Secretary to test models that specifically examine the use of telehealth. This provision could open doors to establish a model like the one proposed in the BREATHE Act where RTs as telehealth practitioners provide disease management services to Medicare beneficiaries with COPD with the home as a telehealth site. We have convincing data from a CMS report to Congress on telehealth and the CMS Administrator’s recent blog that support a COPD health care delivery model.

For example, CMS’ November 2018 report to Congress on “Information on Medicare Telehealth”1 discussed telehealth as a key feature for case management of patients with chronic conditions and highlighted types of telehealth services that coincide with provisions of the BREATHE Act. It stated: “While not limited to Medicare patients, a Cochrane review of telehealth for COPD concluded that increased access to effective, known care management tools may yield positive results. In particular, telehealth can increase access for patients with chronic disease by:2

  • Providing patient education and primary prevention and early detection
  • Improving treatment adherence
  • Facilitating the remote collection of patient data
  • Providing early detection of complications and timely symptom management
  • Reducing unnecessary emergency room and physician visits
  • Preventing hospital readmissions

The Administrator’s recent CMS blog about improving access in rural areas noted “57 percent of deaths from the Centers for Disease Prevention and Control Program’s Morbidity and Mortality Weekly Report Leading Causes of Death in Metropolitan and Nonmetropolitan Counties – United States 2010 – 2017. It demonstrates people in rural areas have higher rates of preventable deaths than those living in urban areas and gives us a great opportunity to discuss future models with CMS.

1 https://www.cms.gov/About-CMS/Agency-Information/OMH/Downloads/Information-on-Medicare-Telehealth-Report.pdf
2 Mclean S, Nurmatov U, Jly L, Pagliari C, Car J, Sheikh A. Telehealthcare for chronic obstructive pulmonary disease ( Review ). Cochrane Libr. 2012;(7). doi:10.1002/14651858.CD007718.pub2.www.cochranelibrary.com.

Why are health care delivery models as part of CMS’ Innovation Center so important?

The Innovation Center at CMS was authorized by the Affordable Care Act. Its purpose is to test new alternative payment and service delivery models outside of the traditional Medicare fee-for-service payment system designed to achieve better care for patients, better health for communities, and lower costs through improvements in the health care system. Its importance relies on payment models that define quality and value over volume of services.

How will the provisions in the CONNECT Act help RTs if their services are limited to “models” being tested by the Center?

There are currently three health delivery models as part of the Innovation Center that include a telehealth component and could be relevant for RTs. We will continue to analyze their feasibility, but in the interim, a brief description is provided below. We also encourage you to go to the Innovation Center’s website. Enter the name of the model in the search box, and you will learn more about these initiatives and see the states that are participating.

Next Generation Accountable Care Organizations (ACOs)
Medicare ACOs are comprised of groups of doctors, hospitals, and other health care providers and suppliers who come together voluntarily to provide coordinated, high-quality care at lower costs to Medicare patients who receive care under the fee-for-service payment system. There are 41 ACOs participating in the Next Generation ACO Model. While that may seem like a small number, remember ACOs are comprised of groups of providers. For example, in 2016, the latest report available, there were 31,070 individual practitioners as part of these networks. The Next Generation ACOs are permitted to waive certain telehealth benefits to improve access to patient care by removing the rural area location requirement and allowing eligible Medicare beneficiaries to receive telehealth care in their home. If the CONNECT Act is passed, this could mean the availability of a RT to remotely check-in on a beneficiary using a smart phone, tablet, smart TV or other technology devices, that the beneficiary also has in their home, to assess a beneficiary’s health status, monitor their medication routines, or instruct a relative or caregiver how to administer the beneficiary’s medication.

Bundled Payments for Care Improvement (BPCI) Initiative
This health care delivery initiative is comprised of 4 broadly defined models that link payments to multiple services provided to Medicare beneficiaries during an episode of care. The models include: 1) an episode of care as part of an inpatient stay in the acute care hospital; 2) an inpatient stay in an acute care hospital plus post-acute care and related services up to 90 days after hospital discharge; 3) an episode of care triggered by an acute care hospital stay beginning at initiation of post-acute care services with a skilled nursing facility, inpatient rehabilitation facility, long-term care hospital or home health agency; and, 4) all services furnished by the hospital, physicians, and other practitioners during the episode of care during an entire inpatient stay. Those participating in the model can choose from among 48 episodes of care which include COPD, and bronchitis/asthma. With respect to telehealth, CMS waived the geographic requirements furnished to eligible beneficiaries for episodes of care in Models 2 or 3, if the services are furnished in accordance with all other Medicare coverage and payment criteria. Smoking cessation is a covered telehealth service. If the CONNECT Act is passed, RTs who are not currently eligible to furnish telehealth services could participate in these models.

Medicare Advantage (MA) Value-Based Insurance Design Model (VBID)
There are currently 13 MA plans from 10 parent organizations, such as Aetna, Inc., Blue Cross/Blue Shield of Massachusetts and Michigan, Highmark Choice Company, and others, that allow the MA plans to target their benefit design to enrollees based on chronic conditions and certain socioeconomic characteristics. According to CMS, the model includes increased access to telehealth services by allowing plans to use telehealth services instead of in-person visits if an in-person option remains. In the first model year (2017), over 96,000 Medicare beneficiaries with specified targeted conditions were eligible for the VBID model. This is another area that may benefit RTs as telehealth practitioners if the CONNECT Act is passed.

Are the RT qualifications in the CONNECT Act like those in the BREATHE Act?

No. The BREATHE Act requires an RRT credential and at a minimum a bachelor’s degree or other advanced degree in a biological or health science. Under the CONNECT Act, an RRT or a CRT can furnish telehealth services and the language is silent with respect to education.

In determining those health care professionals who would be eligible to furnish telehealth services with enactment of the CONNECT Act, the legislative language refers to two sections of the Social Security Act (Act). The language that impacts RTs is found in section 1819(b)(5)(G) of the Act that defines “licensed health professionals” to mean “a physician, physician assistant, nurse practitioner, physical, speech, or occupational therapist, physical or occupational therapy assistant, registered professional nurse, licensed practical nurse, or licensed certified social worker, registered respiratory therapist, or certified respiratory therapy technician.” These professionals would be eligible to furnish telehealth services as part of the CONNECT Act. Some professionals, such as physicians, physician assistants and nurse practitioners, are already eligible to furnish services.

Why are we placing a lot of emphasis on the CONNECT Act and advocating for co-sponsors?

For a bill to become law, both the House and Senate must pass identical legislation. Identical versions of
the CONNECT Act have been introduced in both chambers of Congress. This bill was developed by the Congressional telehealth working group which includes key members of committees of jurisdiction with oversight authority to move bills on telehealth through the legislative process. With over 120 organizations representing a diverse mix of stakeholders supporting the bill, it is the telehealth bill that has the most likely chance of being enacted, whether as a whole or in parts that can be removed and attached to “must pass” legislation, like the annual spending bills. It can also offer additional opportunities for RTs that go beyond the provisions of the BREATHE Act.

Expanding Our Advocacy

If we are expanding our advocacy efforts, what other bills should we be aware of?

In addition to the CONNECT Act, there are three bills that have a bearing on respiratory care and for
which we seek co-sponsorship. They are the following:

  • H.R. 4945, the Safeguarding Medicare Access to Respiratory Therapy (SMART) Act: Removes noninvasive ventilators from competitive bidding for 5 years and requires CMS to convene a technical expert panel to revise outdated coverage polices related to home mechanical ventilation that have caused a spike in utilization.
  • H.R. 4838, the Sustaining Outpatient Services (SOS) Act: Establishes a financial threshold that would exempt cardiac and pulmonary rehabilitation programs located off campus from a main hospital from drastic reimbursement reductions because of their location.
  • S. 3174, Reducing the Youth Tobacco Epidemic Act: Prohibits flavored tobacco products, prohibits online sales of tobacco products, and restricts advertising that attracts youth, among other key provisions. Note: A companion bill in the House, H.R. 2339, was passed by a floor vote on Feb. 28, 2020.

A more detailed discussion of the importance of these initiatives to the respiratory profession is provided in the following FAQs. As we approach our Hill day, we will also create a list of “Other Legislation We Support” to leave behind with staff; however, we do not plan to do separate messaging on these bills.

H.R. 4945 — The SMART Act
(Safeguarding Medicare Access to Respiratory Therapy)

Why is CMS adding noninvasive ventilators to the competitive bidding program? Does this include CPAP and BiPAP devices? I thought they were already part of the program.

CPAP and BiPAP machines have been included as part of competitive bidding since the inception of the program. Although the Food and Drug Administration classifies these devices as ventilators, the Medicare program calls them respiratory assist devices (RAD). A comparison of ventilatory devices is explained below as outlined in a report by the Department of Health and Human Services’, Office of the Inspector General titled “Escalating Medicare Billing for Ventilators Raises Concerns” (HHS OIG Data Brief – September 2016 – OEI-1-1-00370).

Comparison of Medicare Coverage for Ventilators by Device Type Condition(s) Treated Circumstances Under Which Device Is Considered Reasonable and Necessary
Ventilator Neuromuscular diseases, thoracic restrictive diseases, and chronic respiratory failure consequent to chronic obstructive pulmonary disease Beneficiary has a severe condition in which the interruption of respiratory support could lead to serious harm
RAD Restrictive thoracic disorders, severe chronic obstructive pulmonary disease, central sleep apnea, complex sleep apnea, or hypoventilation syndrome Beneficiary has a less severe, non- life-threatening condition that requires only intermittent and relatively short durations of respiratory support
CPAP device Obstructive sleep apnea Beneficiary has been diagnosed with obstructive sleep apnea based on a sleep test

Data from the OIG report shows the cost and utilization of noninvasive ventilators has skyrocketed (85 times more claims) between 2009 and 2016. According to CMS, they are adding noninvasive ventilators to competitive bidding because “over $400 million in Medicare allowed charges was spent on these devices in 2018, the second highest amount for an item of durable medical equipment in 2018, after oxygen concentrators.” The physician community believes this spike is due primarily to outdated coverage policies that do not reflect the fact that certain noninvasive pressure support ventilators today are multimodal devices that can function as a ventilator, a RAD or a CPAP device. Numerous attempts to address the issue and establish a Medicare national coverage policy for home mechanical ventilation have failed.

Why do we need legislation to remove noninvasive ventilators from competitive bidding? Can’t CMS make the change based on stakeholder opposition?

Significant pressure from both House and Senate leaders, patient advocates and the physician community asking CMS to reconsider its decision has failed to move the needle. CMS maintains it has safeguards in place and that due to the high cost and utilization of these devices, it is appropriate to add them to the competitive bidding program. Legislation is the only answer to stop this dreadful and harmful decision.

Currently, Medicare reimburses for noninvasive ventilators on a monthly basis with a single payment that includes all related supplies, servicing and maintenance, and in-home respiratory therapy. These devices require “frequent and substantial servicing” to avoid patient risk and, if added to competitive bidding, would set a precedent since no other device in this category is currently part of the program. If access to home ventilation is restricted to low reimbursement rates, Medicare beneficiaries with debilitating respiratory conditions such as neuromuscular disease, thoracic restrictive disorders, or respiratory failure due to COPD, will experience dramatic increases in emergency room visits, more frequent and longer admissions to hospitals, and greater use of skilled nursing facilities and long-term care institutions, resulting in significantly higher costs and a devastating impact on patient care and quality of life.

Since respiratory therapists play a key role in managing these individuals as the standard of care and CMS does not pay separately for their professional services in the home, adding noninvasive ventilators to competitive bidding will severely compromise the ability of RTs to provide care to these fragile individuals. Home medical equipment suppliers will be faced with lower reimbursement rates that prevent them from subsidizing the cost of the RT’s services.

How will the SMART Act fix the problem?

H.R. 4945, the Safeguarding Medicare Access to Respiratory Therapy (SMART) Act, is a bipartisan bill introduced by Representatives Griffith (R/VA), Welch (D/VT), Bilirakis (R/FL), Soto (D/FL), and Larson (D/CT). It will keep noninvasive ventilators out of the competitive bidding program for 5 years and allow fragile patients who need these life-sustaining devices to remain in their homes. It will protect current monthly payments to home medical equipment suppliers that will enable them to continue to ensure individuals in need of home ventilatory support receive the management and expertise of respiratory therapists. The bill also calls for CMS to convene a technical expert panel to review current coverage policies and make recommendations for change. It is supported by AARC, physician groups, patient advocates, the home care industry and device manufacturers.

As part of a like-minded coalition, AARC is working to have a Senate companion bill introduced. In the interim, the House needs to hear directly from RTs as to why this is important to the profession and the individuals who would be impacted by CMS’ decision.

H.R. 4838 — The SOS Act
Sustaining Outpatient Services

Can you explain why H.R. 4838, the Sustaining Outpatient Services (SOS) Act, is important to respiratory therapists?

In recent years, hospitals started increasing the acquisition of physician practices, resulting in Medicare paying a higher amount under the hospital outpatient payment methodology for the same service furnished in a physician practice that would otherwise have been paid a lower amount under the physician fee schedule. This action created a strong incentive for hospitals to game the system.

To address the issue, the 2015 Bipartisan Budget Act, implemented by CMS in 2017, added a section to Medicare law prohibiting hospitals from billing at the hospital outpatient rate if an existing off-campus service (beyond 250 yards from the main campus) moved to a new location or a new hospital service opened that was located greater than 250 yards from the main campus. A very limited number of exceptions were permitted, e.g., services furnished in an emergency department, in an on-campus department, or a remote location within 250 yards of the main campus.

Hospitals that choose to expand or relocate services beyond the 250-yard threshold, or “off campus”, must bill at the physician fee schedule rate, thereby creating a very strong disincentive for hospitals to improve access to cardiac and pulmonary rehab services. Since Medicare data confirm there is no incentive for hospitals to purchase PR and CR programs in order to obtain higher payment rates, AARC along with other pulmonary organizations met with CMS to express concerns about the impact of the legislation on these valuable programs and to ask that they be exempt from this policy. CMS acknowledged the legislation created unintended consequences but stated they had no authority to make changes.

H.R. 4838, the Sustaining Outpatient Services (SOS) Act is needed to fix the problem. It requires CMS to develop regulations that create specific financial thresholds to exempt certain hospital outpatient services, including cardiac and pulmonary rehab programs, from current restrictive policy. This change could lead to expanded access for patients and respiratory therapists who treat them. It is a necessary step because without it, patient access to these valuable programs would be further compromised. Additional information is also available from the American Association for Cardiovascular and Pulmonary Rehabilitation (AACVPR).

I don’t work in a Pulmonary Rehab Program. Why should I take the time to send in messages to the Hill asking for co-sponsorship when it doesn’t impact my job?

Any action that can improve access to care for patients with chronic respiratory disease should be a goal of all respiratory therapists, regardless of the setting in which they work. The SOS Act is important to the profession, respiratory therapists and patients who need pulmonary rehabilitation because current law limits access to these programs, which already suffer from decreased utilization due to low reimbursement rates. Your “TAKE ACTION” to gain co-sponsorship for the bill represents your support for the profession and individuals who need pulmonary rehab to maintain their quality of life.

S. 3174 — Reversing the Youth Tobacco Epidemic Act

Why should we lobby for S. 3174, Reversing the Youth Tobacco Epidemic Act? Aren’t there other tobacco bills in Congress that are just as important?

There are at least 8 tobacco bills in Congress. S. 3174 is one of the most comprehensive bills to date. Its companion bill, H.R. 2339, was passed by the House in a floor vote on Feb. 28, 2020. Both bills would ban all flavored tobacco products, including mint and menthol, that are attractive to today’s youth, prohibit online sales of tobacco products and restrict advertising that is designed to appeal to individuals under age 21.

As a member of a large anti-tobacco coalition headed by the Campaign for Tobacco Free Kids, the American Lung Association and others, AARC has supported the legislation in a joint letter to Representatives Frank Pallone (D/NJ) and Donna Shalala (D/FL), co-sponsors of the bill, signed by over 55 national organizations. As of December 18, were 101 co-sponsors. Gaining additional co-sponsorship will improve the chances of moving the bill further through the legislative process.

Data from the 2019 National Youth Tobacco Survey (NYTS) show that the youth e-cigarette epidemic has gotten even worse in the past year. E-cigarette use among high school students rose from 20.8% in 2018 to 27.5% in 2019, meaning that more than 1 in 4 high schoolers use e-cigarettes. A total of 5 million U.S. kids now use e-cigarettes. Nearly all (97%) current youth e-cigarette users use flavored e-cigarettes and 70% use e-cigarettes. This is a public health crisis and enacting H.R. 2339 is the best way to help reduce the health risks to our nation’s youth who use tobacco products. That is why we want to have separate messaging to House members through our TAKE ACTION page.

This is a public health crisis and the best way to help reduce the health risks to our nation’s youth who use tobacco products is to gain support for S.3174 now that the House has passed its bill.