Physical therapy practices need to be aware of new legal standards that make it harder for employers to classify workers as independent contractors (as opposed to employees).  This distinction is important because, if an employment relationship exists, employment laws provide certain legal protections to employees and obligate employers to meet specific legal obligations.The penalties for misclassifying employees as independent contractors can be quite significant, so physical therapy practices must understand these recent changes.

 
 
 

Presented by the APTA Private Practice Marketing & PR committee, the PT Awareness Calendar is a free resource to help members develop and enhance their marketing campaigns while raising awareness towards a variety of health conditions (both big and small) and remind patients to be proactive and stay on top of their health. Throughout the calendar members can find idea prompts for blogs and social media pitches:

https://ppsapta.org/pt-awareness/calendar/

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

As I am sure you have heard on the news, on Friday 12/14, a federal judge in a lower court in TX filed a decision that declared the Affordable Care Act to be unconstitutional. His decision hinged on the fact that last December's tax bill the fine for not obtaining health insurance was reduced to zero. The decision held that since that fine has bee reduced to zero, that "tax" has been functionally removed from the law.

The reason this argument matters is that when the Supreme Court evaluated the constitutionality of the ACA previously, it determined that in fact the government did have the authority to compel Americans to have health insurance coverage, citing the Constitution granting Congress the authority to tax and spend. In yesterday's decision, the judge determined that since the "tax" has been reduced to zero, that authority has been relinquished and therefore the whole law must be struck (because of the argument that the taxing authority granted to Congress was the sole reason that it was able to compel Americans to have health insurance--and that the existence of the entire law hinged upon the taxing authority).

The ruling will not impact the 2019 health insurance plans sold through the exchange/marketplace of healthcare.gov or the state equivalents. It also won't immediately affect Americans' health coverage. The most immediate impact could be upon whether or not states will continue to consider expanding Medicaid at a time when the effort might be for naught.

An appeal is inevitable and already being discussed by a group of states led by California. They are likely to argue that the amount of the fine is immaterial, and that the $0 amount is not the equivalent of repealing the tax/fine and that the law still contains (and has the authority to impose) a fine. Because of the high stakes, and the political aspect of the law, the appeal process is likely to make its way to the US Supreme Court. This will take time.

If the US Supreme Court upholds the argument that the entire Congressional authority hinges on whether or not there is a tax/fine of more than $0 imposed upon those who do not have health insurance coverage, then the entire law will be invalidated. If that is the case, Americans will lose pre-existing condition protections, the ability of folks to stay on their parents' health insurance up to age 26 and other provisions of the ACA that have recently become popular on both sides of the aisle and the preservation of which has been a PPS legislative priority.

In a closely watched case, Judge Reed O’Connor of the Federal District Court in Fort Worth, Texas ruled that the Affordable Care Act's individual mandate, which Republicans zeroed out with their tax bill, “can no longer be sustained as an exercise of Congress’s tax power.” And the rest of the law cannot be separated from that provision and is therefore invalid, he wrote.

The New York Times: Texas Judge Strikes Down Obama’s Affordable Care Act As Unconstitutional
A federal judge in Texas struck down the entire Affordable Care Act on Friday on the grounds that its mandate requiring people to buy health insurance is unconstitutional and the rest of the law cannot stand without it. The ruling was over a lawsuit filed this year by a group of Republican governors and state attorneys general. A group of intervening states led by Democrats promised to appeal the decision, which will most likely not have any immediate effect. (Goodnough and Pear, 12/14)

The Associated Press: Federal Judge Rules Health Care Overhaul Unconstitutional
In a 55-page opinion, U.S. District Judge Reed O’Connor ruled that last year’s tax cut bill knocked the constitutional foundation from under “Obamacare” by eliminating a penalty for not having coverage. The rest of the law cannot be separated from that provision and is therefore invalid, he wrote. Supporters of the law immediately said they would appeal. “Today’s misguided ruling will not deter us: our coalition will continue to fight in court for the health and wellbeing of all Americans,” said California Attorney General Xavier Becerra, who is leading a coalition of states defending the ACA. (Alonso-Zaldivar, 12/14)

Politico: Judge Rules Obamacare Unconstitutional, Endangering Coverage For 20 Million
“In some ways, the question before the Court involves the intent of both the 2010 and 2017 Congresses,” O’Connor wrote. “The former enacted the ACA. The latter sawed off the last leg it stood on.” (Demko and Cancryn, 12/14)

Texas Tribune: Federal Judge Rules Obamacare Unconstitutional, Handing Texas An Early Win
In a ruling that could throw the nation’s health care system into chaos, Fort Worth-based U.S. District Judge Reed O’Connor on Friday ruled that a major provision of the Affordable Care Act is unconstitutional — and that the rest of the landmark law must fall as well. In February, a Texas-led coalition of 20 states sued the federal government to end the health care law in its entirety, arguing that after Congress in December 2017 gutted one of its major provisions, the rest of the law was unconstitutional. (Platoff, 12/14)

Kaiser Health News: Judge Strikes Down ACA Putting Law In Legal Peril — Again
It is all but certain the case will become the third time the Supreme Court decides a constitutional question related to the ACA. In addition to upholding the law in 2012, the court rejected another challenge to the law in 2015. (Rovner, 12/14)

 

 
 

PPS’ legislative priorities call for us to address and mitigate the negative effects associated with physician self-referral. In August, PPS filed formal comments in response to CMS’ RFI on physician self-referral. On October 26th, PPS filed formal comments with the Department of Health and Human Services’ Office of Inspector General urging both limits to the use of beneficiary incentives as well as transparency if providers are offering incentives to retain or induce patients to choose a particular provider. In both comments, PSS urged the prompt removal of PT from the IOASE and requesting increased accountability and transparency for referrals made utilizing the IOASE.

 

 

 
 

Three years after being elected President of the American Physical Therapy Association, Sharon L. Dunn, PT, PhD, stood before the House of Delegates and delivered an invigorating address to the body of electorates who first voted her into leadership back in 2015. At the heart of her message was a repeated and compelling charge to act as she emphasized that it is not enough to call out inadequacies in the system, or to idly tweet about embracing change or promoting inclusion. No, she reiterated that as a profession we must band together and work collaboratively to secure the future of our profession.

The members of the American Physical Therapy Association were bold enough to dream of transforming society,” she reminded, “Now we must deliver on that promise by following the most universal piece of advice we provide to our patients and clients: we must move!”


Memorable Quotes from President Dunn’s speech are highlighted below:

 

SETTING A NEW TONE FOR THE FUTURE

“Most of us in this room wear those battle scars—and quite proudly. But where our past was shaped with sharp elbows, our future must be shaped with open arms. Where our origins situated our profession in recovery and the treatment of disorder, our future will be characterized by an increased role in sustaining health and proactively preventing disability and disease. And where previously we have demanded respect in part by staking out turf and occasionally pointing to the shortcomings of others, in our future we will demonstrate our value based on the irrefutable data of our own outcomes and in partnership with our colleagues across disciplines. The health care system and our patients will demand nothing less."

 

QUESTING OVER RESTING

We should approach our future with enthusiasm, not dread, because our profession has never been satisfied with our position within the status quo. Our existence has been one of almost constant self-challenging evolution. Our progress has never been inevitable; it has always been hard-earned. So if we truly desire to not only see society transformed but to shape that transformation, we must not only weather the storm of health care disruption. Instead, as Dr Alan Jette urged in his 2012 Mary McMillan Lecture, we must face into the storm and choose questing over resting.

“But let's be clear: simply embracing change does not create change—and it doesn't make change easy.”

 

WE MUST BE AGENTS, NOT CRITICS

"We cannot transform society through judgment. Our vision charges us not to stand at a distance and point our fingers at our nation's ills but instead to accept a personal responsibility to try to make a difference.

"At our core, we are healers, and as much as ever our country and our society need healing. It is not enough that we tweet about it in judgment. It is not enough that we adopt policies that articulate our principles. It is not enough that we sit idly by, in the comforts that were afforded by those who forged the path before us.

"No, our history tells us that when we stand together and act, we are a force."

 

LET NO ONE FEEL LIKE AN OUTSIDER

"To fulfill our mission, our community must vastly improve our diversity by being intentional about inclusion. We must prioritize listening and learning. We must enable the next generation of physical therapists and physical therapist assistants to transform our association, just as our association must transform society. Most of all we must get involved—with open arms and open minds—not only as a community, but as individuals."

 

OUR MOST VALUABLE ASSET: AN ENGAGED MEMBER

"When we formally charge APTA to act, or simply daydream about "what APTA should do...," we sometimes behave as if we're writing a check for someone else to cash. But as an individual membership association, we are charging ourselves-we are writing our own to-do list. APTA is not a distant factory that churns out ready-to-order physical therapy progress on a conveyor belt. It's a community of physical therapists, physical therapist assistants, and students. It's our community. We are APTA, and APTA is us. Our association's growth, commitment, and determination cannot outpace our own personal development."

 

FOLLOW OUR DREAMS WITH OUR OWN FOOTSTEPS

"If, like I do, you anticipate a day when physical therapists, like dentists, are part of our society's regular health routines, don't just point the way—raise a hand and accept a portion of responsibility to take us there.

"If, like I do, you believe that we gain strength not just with increased membership but with greater engagement, find a colleague who isn't as involved and demonstrate the spirit of inclusiveness our community requires.

"If, like I do, you believe that the power of our profession is boundless, that it can optimize movement and health in every corner of the world, then dare to look beyond traditional delivery and payment models; our patients and clients are likely just as frustrated by the limitations of the status quo as we are, and they are eager for the precise and personalized service we can provide.

"Above all else, if you believe, as I do, that our profession is more educated and skilled than ever before, that our potential is greater than it has ever been, then join me in demanding that we provide only the highest quality of care and that we are immediately accountable when the data suggest our patients and clients deserve something better."

 

APTA President Sharon L. Dunn, PT, PhD, Board-Certified Orthopaedic Clinical Specialist, was reelected to a second 3-year term, June 25, 2018. To read the full transcript of her 2018 address, or to watch the video, visit the APTA website.