MFT and Medicare
A Legislative Chronicle
MFTs have come a long way since the 101st Congress (1989-1991) considered legislation to recognize MFTs under the Medicare program. Most recently, forty-four Senators signed a letter from the Senate Rural Health Caucus stating “[w]e strongly urge the [Finance] Committee to provide Medicare reimbursement for Licensed Professional Counselors and Marriage and Family Therapists at the rate that Social Workers are paid.” Senator Craig Thomas (R-WY), the Chair of the Caucus and our Senate sponsor, emphasized the point: "Marriage and Family Therapists play a crucial role in the delivery of mental health care, especially in rural communities. I believe it is long past due that the Medicare program allow senior’s access to these mental health providers, and allow the providers to bill Medicare for their services. That is why I am working with my rural Senate colleagues to ensure enactment of S. 1760 before the end of this year.”
The Community Mental Health Center Act of 1989 (S. 1591) was the first bill to include language providing Medicare coverage of MFT services, although it was limited in scope to community mental health centers. Senator Moynihan sponsored the legislation, with several influential senators cosponsoring, including Senators Dole and Daschle. The language from the bill was included in the Senate’s Omnibus Budget Reconciliation Act of 1990 (S. 1102), but never made it into law. Senator Moynihan introduced similar legislation (S. 3209) in the 102nd Congress, but again the measure failed. It was recommended at that time that the American Association for Marriage and Family Therapy (AAMFT) get more states licensed – roughly half had licensure laws – before continuing with the initiative. The association spent the next ten years following that recommendation.
When AAMFT resumed the Medicare initiative in 1999, 42 states licensed the profession. It was decided that AAMFT should join with the California Association of Marriage and Family Therapists (CAMFT) to retain a lobbying firm to pursue the effort. Capitol Associates, Inc., one of the top health care lobbying firms in D.C., was selected to help represent the interests of MFTs in this endeavor.
In the fall of the same year, Representative Nathan Deal (R-GA) introduced the first MFT-Medicare bill (H.R. 2945) in over a decade. The bill provided reimbursement for MFTs under Medicare Part B, and in rural health clinics and hospices. Congressman Deal was a solid champion who was on the Health Subcommittee of the Commerce Committee, which is one of two committees with jurisdiction over Medicare issues – the Ways and Means Committee being the other. Representative Ted Strickland (D-OH), also a member of the subcommittee, joined as an original cosponsor.
By the end of 1999, H.R. 2945 had 23 cosponsors and some momentum. In October of 1999, the bill came very close to being included in legislation that Congress was developing to correct Medicare reimbursement problems created by the Balanced Budget Act of 1997 (BBA). Congress was trying to amend language in the BBA that dramatically reduced payments to certain Medicare providers (nursing homes, home health facilities, hospitals, and occupational therapists) and thus were threatening the survival of these groups. Ultimately, Congress decided to limit the legislation to helping those parties that were adversely impacted by implementation of the BBA and not include tangential issues such as coverage of MFT services.
The second half of the 106th Congress also presented opportunities. By summer of 2000, 44 Representatives were cosponsors of the Deal bill. An obstacle arose during the session when the Georgia Medical Society, working from a terribly misleading fact sheet provided by the American Psychiatric Association, met with Representative Deal to urge his withdrawal of support for H.R. 2945. This was the first formal notice to AAMFT that there was organized opposition to our effort.
As the end of the 106th session approached, another opportunity to get the bill language into priority legislation materialized. Congress was again confronted with the need to increase payments to certain Medicare providers that were harmed by payment reductions in the Balanced Budget Act of 1997. The AAMFT targeted the relevant House and Senate committees for inclusion of H.R. 2945. Congressional lobbying and grassroots advocacy succeeded in getting a provision from the Deal bill in the Senate Democrats’ provider giveback legislation (S. 3077), although it was limited to reimbursement for services provided in rural health clinics. Unfortunately, the House of Representatives did not include a similar provision, and when the legislation went to conference for reconciliation, the rural health clinic provision was not incorporated.
Intense lobbying by MFTs, however, as well as pressure from several other interested groups, prompted Congress to do something. Consequently, in an unfortunate twist of last minute negotiations, Congress decided to approve a provision in the Labor/Health and Human Services Appropriations bill (H.R. 4577) that directed the Medicare Payment Advisory Commission (MedPAC) to conduct a study on the “appropriateness” of providing Medicare coverage to marriage and family therapists– as well as pastoral care counselors, licensed professional counselors of mental health, and other unrelated providers. The study was to evaluate the short and long-term benefits and costs to the program culminating in a report to be submitted to Congress within 18 months. Significantly, the American Psychiatric Association was once again involved when Congress was considering the issue and played a role in getting MFTs sent to study, as evidenced in a report to its members stating “[a] t one juncture, the Senate Finance Committee appeared poised to approve direct payments to marriage and family therapists, but [APA] DGR aggressively and successfully blocked their efforts to win direct payment in the Senate and similar efforts in the House. APA will make certain that our concerns are heard by Med PAC as it studies these groups.”
The MedPAC study ultimately provided another arena for intervention and advocacy, but did not slow the legislative progress. The Medicare initiative leaped to life in the 107th Congress with the introduction of H.R. 898, the Seniors Mental Health Access Improvement Act, on March 6, 2001. Representative Ted Strickland (D-OH), who originally cosponsored the Deal bill and is a clinical psychologist, took the lead as the sponsor for the new session. Congressman Strickland demonstrated a strong commitment to passage of the legislation and wanted to be our champion. In a “Dear Colleague” letter to fellow Members of Congress, Strickland stated, “Ensuring that all qualified mental health providers are covered by Medicare is essential to improving access to mental health services. That’s why I introduced legislation, H.R. 898, to authorize Medicare coverage for Marriage and Family Therapists.”
On April 4, 2001, two more bills were introduced that provided Medicare coverage of MFT services. Senator Paul Wellstone (D-MN) and Representative Pete Stark (D-CA) each introduced the Medicare Mental Health Modernization Act, S. 690 and H.R. 1522 respectively, to modernize the mental health benefits under the Medicare program. In addition to recognizing MFTs, the legislation also authorizes access to mental health counselors, and further enhances the mental health benefit by reducing the outpatient mental health copay from 50% to 20%, eliminating the 190 day cap on inpatient psychiatric services, and adding intensive residential and community services. S. 690 was a significant accomplishment as the first Senate MFT-Medicare bill.
The majority of 2001 was spent adding cosponsors to our three Medicare bills, reaching 28 for H.R. 898, 64 for H.R. 1522, and 8 for S. 690. The end of the year also handed MFTs another noteworthy success. On December 4, 2001, Senators Craig Thomas (R-WY) and Blanche Lincoln (D-AR) introduced the Seniors Mental Health Access Improvement Act of 2001, S. 1760. This was the first narrow Senate bill providing Medicare beneficiaries with access to marriage and family therapists. The bill also provided coverage of mental health counselor services. The senators recognized the need for this legislation based on their representation of rural states experiencing shortages of mental health providers. As a result of these collective accomplishments, substantial progress was made in the first half of the 107th Congress.
The Medicare initiative began on an upswing in 2002 and is turning out to be quite a roller coaster ride. On March 8, 2002, yet another bill was introduced to recognize MFTs and counselors. The bill, H.R. 3899, is a companion to S. 1760 and was introduced by Representative Brad Carson (D-OK). With the introduction of this legislation, five MFT-Medicare bills were pending in Congress.
On March 21, the Medicare Payment Advisory Commission (MedPAC), which was directed by Congress to study the appropriateness of including MFTs, mental health counselors, and pastoral counselors in Medicare, held a meeting to consider the issue. It was clear from the beginning that MFTs were not going to get a fair review before MedPAC. The first significant indication of bias came from the MedPAC staff report that was used by commissioners to evaluate the issue, which included numerous misrepresentations and omissions relating to the issue and the profession. At the meeting, commissioner opinions and biases became clearer through their comments and questions. The American Psychiatric Association (APA) also voiced its opinions during the public testimony portion, indicating that the limited Medicare funds were better served reducing the 50% copayment for outpatient mental health services than adding providers. Before, during and after the hearing, the AAMFT and other groups devoted substantial time and resources to educating the commissioners about the merits of non-physician recognition under Medicare, but despite these best efforts, on April 25, MedPAC voted to recommend against inclusion of MFTs and the others in Medicare. Interestingly, they based their decision on the very same logic provided by the APA: Medicare resources were better spent reducing the outpatient copay.
Congress took a renewed interest in Medicare around the time MedPAC’s deliberations and recommendations concluded. As summer approached, the House of Representatives decided to take up Medicare prescription drug legislation, as well as legislation to increase payments to certain Medicare providers. The House Energy and Commerce Committee played a pivotal role in the development of this legislation, beginning consideration of the issue on June 20, 2002. Representative Strickland (D-OH), a member of the committee, recognized this as a great opportunity to include H.R. 898 in this Medicare package. The issue became very political, so the Republicans prepared a committee bill that did not include Democratic provisions. Therefore, Congressman Strickland decided to offer the MFT-Medicare language as an amendment to the Republican legislation. Strong grassroots outreach and congressional lobbying placed pressure on committee members to support the Strickland amendment. Unfortunately, at a crucial point in the committee markup process, MedPAC prematurely released its report recommending against inclusion of MFTs in Medicare. This report, along with the politics of the issue, created sufficient opposition to defeat the amendment. Consequently, Congressman Strickland spoke about the issue in committee and then withdrew the amendment prior to a vote on the record.
It is reported that the Senate will consider legislation to increase payments to Medicare providers in October of 2002 or after the election in November. In July, the Senate debated prescription drugs on the floor but could not reach consensus. It is likely that prescription drugs will now also be part of the provider debate. The AAMFT is making a broad push to get language providing Medicare coverage of MFT services into the provider “giveback” legislation. The issue will be first considered in the Senate Finance Committee, whose leaders are currently putting together a package of issues. Senators Thomas and Lincoln have placed S. 1760, recognizing both MFTs and counselors, on their list of priorities for inclusion in the Finance Committee’s package. The Majority Leader in the Senate, Senator Daschle, has also put this issue on his list. Furthermore, as previously mentioned, the Senate Rural Health Caucus has submitted a letter with 44 signers to the committee “strongly urging" Medicare reimbursement for MFTs. If adopted into the Senate package, the legislation will likely pass the chamber and go to conference to reconcile differences with the House bill. Failure to be included will push the Medicare effort back to the 108th Congress. It is our hope that by the time you read this article, the AAMFT will be shifting its focus on to conference matters instead of next year’s plans for MFT-Medicare legislation.