Clarice Grote, MS, OTR/L

Clarice Grote, MS, OTR/L

How Medicare Law is Made and What You Can Do

Since Medicare is a federal health insurance program, the process of Medicare law development is primarily public and open to opportunities for advocacy. Here’s a general outline of how the process works, but there is a lot of nuance in the process. So for more information, keep on reading!

  1. Bill introduced in House and Senate and assigned to a committee
  2. Bill passes out of committee and gets a vote on the floor
  3. Bill passes in House and Senate
  4. Signed into law by President
  5. New Medicare law goes to the Centers for Medicare & Medicaid Services (CMS)
  6. CMS Interprets law and publishes proposed rule
  7. Commenting period for public
  8. CMS takes comments and publishes the final rule
  9. New regulations implemented by clinicians 

So, that’s the very simplified overview. Now, let’s get into the details of how Medicare policy is created, some examples, and how you can make your voice heard. 

I’m just a bill…

Most Medicare policy starts in DC with the US Congress. Congress consists of the US House of Representatives and the US Senate. Congress sets the general direction for Medicare through the passage of legislation. 

When someone has a piece of legislation they want to be introduced in Congress, they must first find sponsors. So, for example, when AOTA wanted to introduce the Medicare Home Health Flexibility Act, they first had to find sponsors in the House and Senate. Any member of Congress can introduce a bill. Generally speaking, AOTA always seeks a democrat and republican sponsor for legislation in the House and Senate as it is easiest to garner support for bipartisan legislation. 

Once a bill is introduced, it is given a number, and then it is typically assigned to a committee. Generally speaking, before the bill can receive a vote on the floor, it must first pass through the committee. Committees consist of a group of legislators who review bills on a common topic. When it comes to legislation that impacts occupational therapy, there are specific committees we typically follow. 

Committee Work

In the House, the Ways and Means Committee and the Energy and Commerce Committee are the two primary committees that deal with our legislation. We primarily follow the Senate Finance Committee and the Health, Education, Labor, and Pensions (HELP) committee in the Senate. 

Once the bill is assigned to the committee, it may eventually be brought before the committee during a hearing. These hearings are streamed to the public on C-SPAN or their websites. Occasionally, we have individuals come before the committee to testify on behalf of the legislation, like when Dr. Victoria Garcia Wilburn testified on behalf of the Allied Health Workforce Diversity Act.

During this process, called “mark-up,” the committee can add amendments to adjust the text of the bill. Once any amendments have been agreed to, then the committee can vote to pass the bill through the committee. If the bill passes through the committee, it is eligible for a vote on the floor. 

Let’s Get to the Floor

For the bill to become law, it must bass a floor vote in the House and Senate. Occasionally, the bill may pass on its own or “stand-alone.” But more often, a bill is attached to a larger bill as part of a package. This can occasionally be referred to as a “Christmas tree bill” with other bills attached or ‘ornaments.’  

The Senate and the House both have to pass the bill text in the exact same form. If the language is different between the chambers, then it goes through a process of reconciliation. 

Once a chamber passes a bill, it is considered engrossed or in final form, and then the second chamber can agree to the exact text passed by the first chamber. If the other chamber passes the bill from the first chamber, it can now go to the President. 

What if they disagree?

Congress rarely disagrees, right? Well… at times, the second chamber may decide to amend the bill passed by the first chamber, in which case, the bill then has to go back to the first chamber to be passed again. These amendments can be big or small and may or may not be related to the original topic. Once all amendments have been agreed upon, then it goes back to the first chamber for the process to continue. This back and forth can go on for any length of time. 

If there is no resolution, a specialty conference committee can be called. A specialty conference committee consists of members from the House and senators. The committee meets to discuss a specific bill and find common ground to agree on a text that both chambers can pass. If the bill is supported by the majority of House and majority of Senate representatives, the conference report goes back to the House and Senate. For this bill to pass, both chambers have to pass the bill without any changes. 

So, as you can see, this can be quite a complex process that often results in lengthy disagreements without resolution. If the bill eventually passes both chambers, it goes to the President, who can either veto or sign the bill. 

Advocacy in Congress

At each step of this process, we can advocate. If we like the bill as written, we ask legislators to cosponsor the bill. This is a formal process where a legislator can sign on to show public support for a piece of legislation. Cosponsors of bills can be seen on congress.gov. 

If we want to change something in a bill or prevent a bill from passing, we advocate for those issues. Generally speaking, you want to try and present a solution if you want something to change. This is the best way to have success. Also, you want to tailor your ‘ask’ and your evidence to the person you’re talking to. So, the points you bring up in support of a bill may differ for each person you speak with, depending on their goals and beliefs. We do this every day as clinicians with our patients when educating them on why therapy is essential. 

AOTA’s Role in Congress

AOTA supports this process with its lobbyists on the Federal Affairs team and volunteers. AOTA has 2.5 full-time lobbyists who advocate daily for legislation to pass that favors occupational therapy. This is one of the many reasons why AOTA membership is essential. Because your dues support the advocacy work, they do on our behalf. 

Additionally, AOTA makes contacting our legislators easy with the AOTA Take Action Page. AOTA staff prewrite form letters for you to edit and send to your legislators. When you send these letters, the main “ask” is that the legislator supports the bill either through cosponsorship or by agreeing to vote for it when it comes time for a vote. 

AOTA also has the American Occupational Therapy Political Action Committee, or AOTPAC*, which is the political arm of AOTA. Funds raised by AOTPAC support advocacy initiatives and candidates running for office who support OT. AOTPAC is not funded by AOTA dues but is instead funded by donations from AOTA members. To learn more about AOTPAC, please visit aota.org/advocacy/political-action-committee/

What Happens Once Legislation is Passed

Once legislation is signed into law, the Centers for Medicare & Medicaid Services (CMS) takes the legislation and writes the rule book on how to implement the directive into practice. So they take a piece of legislation that may be a few pages and turns it into hundreds or thousands of pages. It’s similar to that old peanut butter and jelly challenge where you have to write out each step in excruciating detail. 

Proposed Rules

The first public step of this process is when CMS releases a proposed rule which is when CMS announces its intent to issue a new regulation or modify an existing one. The proposed rule is an opportunity for the public to comment during the aptly named commenting period. 

By law, anyone can submit a comment during the CMS rulemaking process, and CMS must then read and consider these comments. Typically, the commenting period lasts 60 days from when the rule is published. All comments are publicly reported, so be aware of that when you submit a comment. This process is not very confidential.

Final Rule

After this process is completed, CMS will draft and then publish the final rule. This is where they issue their final guidance as well as respond to comments. It is important to read both the final guidance as well as the comments because many of the details of the policy are in the comments. 

Once the final rule is published, it goes into effect around 30-60 days after publication, depending on its impact. 

Where to Advocate Medicare Law Rulemaking Process

The best time to advocate is during the commenting period after the proposed rule during the rulemaking process. Depending on how the bill text was written, CMS may or may not be able to make certain changes without another act of Congress. 

AOTA’s regulatory team supports advocacy during this process through comments and meeting with CMS. They often have form letters available for practitioners and students to use for their comments. These letters are a great way to learn about the proposed rule and share your story. 

How You Can Advocate During the Medicare Law Development Process

Your voice and your story are needed! The profession depends on your support and your advocacy. The best way to advocate during the legislative process is by contacting your legislators. You can call or email them and you can also use the AOTA Take Action page

The AOTA Take Action page can be used by anyone to send an email to your legislator about certain legislation. These emails take less than 5 minutes to complete and are completely editable. It is highly encouraged that you edit the letter to share YOUR story. These letters are effective, and they do get read by someone. You may even get a call or email back from your legislator!

During the Medicare rulemaking process, you can advocate by submitting comments to CMS. AOTA will submit a call to action and occasionally provide form letters, but you definitely don’t need to wait for that call to action. You can also serve on panels and committees and share your experience as an OT provider. 

Be a Member

The best way to advocate is to BE A MEMBER! Your membership is your investment in the longevity of the profession. Not everyone has time to send letters, call their representative, or participate in calls to action. That’s okay. We also need people who support the people doing that work by being a member. Your dues help support the staff at AOTA, and the volunteers in your state association advocate on your behalf. 

To learn more about the benefits of AOTA Membership or the new AOTA membership structure, check out the linked articles. 

Remember, you deserve a seat at the decision-making table, and your story matters!

Does advocacy work? 

Yes! Advocacy works throughout the legislative and rulemaking process. A good example of this process is the occupational therapy assistant payment differential. The implementation of the OTA and PTA payment differential was a provision included in the Balanced Budget Act of 2018. Congress provided the end goal of a 15% reduction of Medicare payments for services provided by OTAs and PTAs under Medicare Part B.

CMS then took this directive and started the rulemaking process. There was much debate about what a modifier would look like, how it would be calculated, how to educate practitioners, etc. Initially, they proposed a documentation requirement and that the OTA modifier be used if the OTA provided 10% or more of the treatment minutes. 

Thanks to advocacy, CMS recognized the documentation requirement was unnecessary and burdensome. Advocacy also eventually changed the 10% rule to be more unit-based instead. This is also an example of a policy that went through 2 rounds of rulemaking. First in 2019 for the implementation of the modifier and again in 2021 for the implementation of the payment differential. 

During this process, AOTA and other stakeholders have advocated for exemptions for the payment differential for rural and underserved areas and looking for ways to delay the modifier. CMS responded that they do not have the authority to institute such exemptions and referred us to Congress. Thus, leading to the creation of the SMART Act

So, just in this example, you can see that the amount of time between legislation passing and its implementation in practice can be months or even years. This delay between the passage of legislation and its implementation is why it’s so important to get involved early and pay attention. If our voices aren’t represented, our problems can’t be solved. 

Like they always say, if you aren’t at the table, you’re on the menu. 


Podcast: How Medicare Law is Made


Resources

*Information included on AOTPAC is for educational purposes only. It is not a solicitation or endorsement. 

Clarice standing in a light room smiling wearing black pants and a light green puff sleeve shirt

hi there,

I’m  Clarice

Occupational therapist & medicare specialist helping practitioners understand policy, engage in advocacy, and own their value!

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