National Athletic v. U.S. Dept., Human Serv., 3:05-CV-1098-G.
| Decision Date | 25 August 2005 |
| Docket Number | No. 3:05-CV-1098-G.,3:05-CV-1098-G. |
| Citation | 394 F.Supp.2d 883 |
| Parties | NATIONAL ATHLETIC TRAINERS' ASSOCIATION, INC., a Texas Non-Profit Corporation, Plaintiff, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants. |
| Court | U.S. District Court — Northern District of Texas |
Robert H. Mow, Jr., Jamie Lavergne Bryan, Paul R. Genender, Hughes & Luce, Dallas, TX, for Plaintiff.
Sean Robert McKenna, US Attorney's Office, Department of Justice, Kenya S. Woodruff, Baker & McKenzie, Dallas, TX, Jeffrey D. Pariser, Jennifer W. Feinberg, Jeremy T. Monthy, Hogan & Hartson, Washington, DC, for Defendants.
Before the court is the motion of the defendants, the United States Department of Health and Human Services ("H.H.S."), Michael O. Leavitt, Secretary, H.H.S. (the "Secretary"), and Mark McClellan, MD, Administrator, Centers for Medicare and Medicaid Services ("CMS") (collectively, the "defendants"), to dismiss the application of the plaintiff, the National Athletic Trainers' Association, Inc. ("NATA"), for a temporary restraining order, for preliminary and permanent injunctive relief, and for a declaratory judgment. For the reasons discussed below, the defendants' motion is granted.
On May 27, 2005, NATA initiated this action, seeking injunctive and declaratory relief in connection with the implementation of new regulations promulgated by the Secretary. See generally Plaintiff's Application for Temporary Restraining Order, Request for Preliminary and Permanent Injunctive Relief, and Complaint for Declaratory Judgment ("Complaint"). On June 3, 2005, this court issued an order, incorporating an agreement of the parties, staying implementation of the revised Medicare regulations at issue until such time as the court issues a ruling on NATA's request for preliminary injunctive relief or until July 22, 2005, whichever occurs first. Order, filed June 3, 2005, at 2-3. This order also established a schedule for the parties to submit proposed findings of fact and conclusions of law relating to the request for preliminary injunctive relief. Id. at 3-4.
On June 23, 2005, the defendants filed this motion to dismiss. In an effort to provide the parties with a timely resolution of this dispute, the court agreed to use its best efforts to rule on the motion to dismiss and, if necessary, the motion for preliminary injunctive relief before the deadline of July 22, 2005 agreed on by the parties.
Medicare, enacted in 1965 as Title XVIII of the Social Security Act, is a health insurance program for the elderly and disabled. 42 U.S.C. § 1395 et seq. The Medicare Program is divided into three parts, Parts A, B, and C. Id. Included in Medicare Part B's coverage are "services and supplies... furnished as an incident to a physician's professional service, of kinds which are commonly furnished in physicians' offices and are commonly either rendered without charge or included in the physicians' bills...." 42 U.S.C. § 1395x(s)(2)(A). Medicare regulations provide that "[s]ervices of nonphysicians that are covered as incident to a physician's service are paid as if the physician had personally furnished the service." 42 C.F.R. § 414.34(b). The regulations further provide that "Medicare Part B pays for physicians' services, including... therapy." 42 C.F.R. § 410.20(a).
In 1997, Congress, as part of the Balanced Budget Act of 1997, amended section 1862(a) of the Social Security Act, 42 U.S.C. § 1395y(a), by adding paragraph 20. As a result of the amendment, the statute provides in relevant part:
(a) Notwithstanding any other provision of [the Medicare Act], no payment may be made under part A or part B of [the Medicare Act] for any expenses incurred for items or services —
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(20) in the case of outpatient occupational therapy services or outpatient physical therapy services furnished as an incident to a physician's professional services (as described in section 1395x(s)(2)(A) of this title), that do not meet the standards and conditions (other than any licensing requirement specified by the Secretary) under the second sentence of section 1395x(p) of this title (or under such sentence through the operation of section 1395x(g) of this title) as such standards and conditions would apply to such therapy services if furnished by a therapist....
42 U.S.C. § 1395y(a)(20); Pub.L. No. 105-33 § 4541(b) (1997). At the time § 1395y(a)(20) was enacted, the second sentence of § 1395x(p) provided:
[t]he term "outpatient physical therapy services" also includes physical therapy services furnished an individual by a physical therapist ... who meets licensing and other standards prescribed by the Secretary in regulations ..., if the furnishing of such services meets such conditions relating to health and safety as the Secretary may find necessary.1
42 U.S.C. § 1395x(p) (1997). The language of § 1395x(p) has remained unchanged since 1997.
On November 15, 2004, the Secretary issued a final rule entitled 42 CFR Parts 403, 405, 410, et. al. Medicare Program: Revisions to Payment Policies Under the Physician Fee Schedule for Calendar Year 2005; Final Rule (the "Final Rule"). 69 Fed.Reg. 66,235 (Nov. 15, 2004). Among other revisions, the Final Rule modified those portions of the Medicare regulations pertaining to therapy services which are included under the "incident to" coverage of Medicare Part B. Id. The relevant provisions of the Final Rule at issue authorize payment for occupational therapy and physical therapy services which are provided "incident to" a physician's professional services only if therapy services are provided by an occupational or physical therapist who meets the qualifications provided by 42 C.F.R. § 484.4. Id. at 66,421-66,422 (revising 42 C.F.R. §§ 410.26(c)(2), 410.59(a)(3)(iii), 410.60(a)(3)(iii)) (the "New Rules"). The New Rules provide:
§ 410.26 Services and supplies incident to a physician's professional services: Conditions.
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(c) Limitations
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(2) Physical therapy, occupational therapy and speech-language pathology services provided incident to a physician's professional services are subject to the provisions established in § 410.59(a)(3)(iii), § 410.60(a)(3)(iii), and § 410.62(a)(3)(iii).
42 C.F.R. § 410.26(c)(2) (2005).
§ 410.59 Outpatient occupational therapy services: Conditions.
(a) Basic rule. Except as specified in paragraph (a)(3)(iii) of this section, Medicare Part B pays for outpatient occupational therapy services only if they are furnished by an individual meeting the qualifications in § 484.4 of this chapter for an occupational therapist or by an appropriately supervised occupational therapy assistant but only under the following conditions:
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(3) They are furnished —
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(iii) By, or incident to the service of, a physician, physician assistant, clinical nurse specialist, or nurse practitioner when those professionals may perform occupational therapy services within the scope of State law. When an occupational therapy service is provided incident to the service of a physician, physician assistant, clinical nurse specialist, or nurse practitioner, by anyone other than a physician, physician assistant, clinical nurse specialist, or nurse practitioner, the service and the person who furnishes the service must meet the standards and conditions that apply to occupational therapy and occupational therapists, except that a license to practice occupational therapy in the State is not required.
42 C.F.R. 410.59(a)(3)(iii) (2005).
§ 410.60 Outpatient physical therapy services: Conditions.
(a) Basic rule. Except as specified in paragraph (a)(3)(iii) of this section, Medicare Part B pays for outpatient physical therapy services only if they are furnished by an individual meeting the qualifications in § 484.4 of this chapter for a physical therapist or by an appropriately supervised physical therapy assistant but only under the following conditions:
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(3) They are furnished —
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(iii) By, or incident to the service of, a physician, physician assistant, clinical nurse specialist, or nurse practitioner when those professionals may perform physical therapy services under State law. When a physical therapy service is provided incident to the service of a physician, physician's assistant, clinical nurse specialist, or nurse practitioner, by anyone other than a physician, physician assistant, clinical nurse specialist, or nurse practitioner, the service and the person who furnishes the service must meet the standards and conditions that apply to physical therapy and physical therapists, except that a license to practice physical therapy in the State is not required.
42 C.F.R. 410.60(a)(3)(iii) (2005).
An occupational or physical therapist is qualified under 42 C.F.R. § 484.4 if he or she meets certain educational or experience-based requirements. 42 C.F.R. § 484.4. These qualifications do not include any licensing requirements. Id. The effect of the implementation of the New Rules is summarized in the revisions to section 230.5 of the Medicare Benefit Policy Manual, which provides in relevant part:
Qualifications of Auxiliary Personnel.
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Medicare is authorized to pay only for services provided by those trained specifically in physical therapy, occupational therapy, or speech-language pathology. That means that the services of athletic trainers, massage therapists, recreation therapists, kinesiotherapists, low vision specialists or any other profession may not be billed as therapy services.
Transmittal 34, Change Request 3648, CMS Manual System, Pub. 100-02, Chapter 15, Sections 220 and 230 Therapy Services, attached as Exhibit F-3 to Appendix to Plaintiff's Proposed Findings of Fact and Conclusions of Law in Support of its Request for Preliminary...
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