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October 20, 2010 Paul Deutsch, M.D. Medical Director National Government Services, Inc. P.O. Box 7108 Indianapolis, IN 46207-7108 Dear Dr. Deutsch: On behalf of the American Physical Therapy Association (APTA), I am writing regarding the NGS Draft LCD for Nerve Conduction Studies (NCS)/Electromyography (EMG) (DL26869) that would revise the limitations section to limit coverage for physical therapists to the technical component only of NCS/EMG tests. The APTA represents the interests of over 78,000 physical therapists, physical therapists assistants and students of physical therapy. The APTA has several sections representing various specialties within the profession of physical therapy, including a section on Clinical Electrophysiology. Electromyography is widely accepted and recognized as being a professional service within the scope of physical therapy practice. APTA strongly recommends that NGS remove the following language included in the draft LCD.

Limitations:

Coverage for nerve conduction studies or electromyography by qualified physical therapists is limited to the technical component of the tests. Interpretation of the studies must be performed by physicians or qualified non-physician practitioners trained in the performance of electrodiagnostic procedures and knowledge about clinical diagnostic and management aspects of neuromuscular diseases. The limitation on coverage of services provided by certified physical therapists does not accurately reflect Medicare rules. Therefore, is should be removed allowing the ABPTS certified physical therapist (as well as PTs who are grandfathered) to bill Medicare for both the professional and technical component of the service. Specifically, the language should be revised to state the following to be consistent with national Medicare policies:

Limitations:

A physical therapist who is certified by the American Board of Physical therapy Specialties (ABPTS) in clinical electrophysiology or a physical therapist who has billed Medicare for these services prior to May 2001 can perform procedures in the range of CPT 95860 through 95937 assigned a level of 21, 22, 66, 6a, 77, or 7a. Electrophysiologic examinations and evaluations as practiced by physical therapists encompass both the professional and technical components of the observation, recording, analysis, and interpretation of bioelectric muscle and nerve potentials, detected by means of surface or needle electrodes, for the purpose of evaluating the integrity of the neuromuscular system. The professional component (interpretation) of an EMG, which is a diagnostic test, does not constitute a medical diagnosis. The professional component of a diagnostic test constitutes summarizing, interpreting, and reporting the findings from the data obtained; it is not establishing a medical diagnosis. After the EMG is performed, the physician analyzes the results of the EMG (written report and interpretation (PC)) and considers it in conjunction with other clinical information such as the patient's history, physical examination findings, and other tests to determine a specific diagnosis for the patients.

As noted above, the professional component does not include medical diagnosis but rather interpretation. A physical therapist who performs an EMG does not make a medical diagnosis. Physical therapists practice according to the physical therapist patient management model that includes all of the following: examination, evaluation, diagnosis, prognosis and intervention. The diagnostic process used by physical therapists is the same diagnostic process that is used by physicians and other health professionals to identify the nature of the patient's problems. The outcome of the diagnostic process, however, is different for each professional. Only physicians can label the patient's problem with a medical diagnosis. Diagnosis by a physical therapist is essential for the physical therapist to identify the patients in a way that will guide the selection of appropriate physical therapist interventions. The physical therapist does not identify the patient's problem with a medical diagnosis because the physical therapist will not be providing medical treatment, which only a physician can do. The diagnosis provided by the physical therapist allows the physical therapist to provide the most appropriate physical therapy. Examination and evaluation by a physical therapist include the use of specific test and measures (such as EMG) and are within the physical therapists defined scope of practice. The physical therapist performs the EMG, including interpreting and summarizing the findings, and reports the EMG results to the referring practitioner/physician. The physician must consider the results of the EMG, along with other clinical information to complete the differential process needed to determine a specific medical diagnosis for the patient. The Medicare program has issued rules and program memorandums that affirm the ability of physical therapists to perform and bill Medicare for the professional and technical components of the EMG. The language in NGS's draft LCD is contrary to these memorandums. NGS does not have the authority to establish policies in an LCD that are inconsistent with the Medicare regulations. Specifically, in the 1998 physician fee schedule rule (62 Fed. Reg 59048) and Program Memorandum B-01-28 (released on April 19, 2001), CMS established its policies for diagnostic tests that applied to both global services (which is valued as the sum of the professional and technical components) and technical components of the test. In both the proposed and final rules for the 1998 physician fee schedule, it is clear that provisions related to physician supervision of diagnostic tests were not intended to be limited to the technical component. For example, on page 59058 of the Federal Register of October 31, 1997, under the section for "Supervision of Diagnostic Tests," CMS (then HCFA) states: "We have modified our proposal to provide two additional exceptions to the requirement for physician supervision for diagnostic procedures in which physical therapists are involved. These exceptions apply to codes in the range of CPT codes 95860 through 95937. Under one exception with a physician fee schedule data base indicator of 6, that is, the procedure must be personally performed by a physician or a physical therapist who is certified by the American Board of Physical therapy Specialties as a qualified electrophysiologic clinical specialist and is permitted to provide the service under State law. Under the second exception with a data base indicator of 7, the procedure must be personally performed by a physical therapist who is certified by the American Board of Physical Therapy Specialties as a qualified electrophysiologic clinical specialist or performed under the direct supervision of a physician. The 1998 Physician Fee Schedule Rule also showed that the same indicators were applied to the global and technical component services of diagnostic tests. For example, for code 95860 and 95860-TC, the indicator was 6. Indicator 6 was defined as "Procedure must be personally performed by a physician OR a physical therapist who is certified by the American Board of Physical Therapy Specialties as a qualified electrophysiologic clinical specialist AND is permitted to provide the service under State law." Subsequently, on April 19, 2001, a Program Memorandum (Transmittal B-01-28), was issued to the Medicare Carriers. This Program Memorandum, which is available at http://www.cms.gov/Transmittals/downloads/B0128.pdf revised

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the indicators that were included in the 1998 physician fee schedule final rule. With respect to certain codes in the range of CPT 95860 through 95937 it established new supervision levels (either 21, 22, 6a, 66, 77 or 77a). It stated that effective July 1, 2001, a physical therapist who is presently certified by the American Board of Physical Therapy Specialties can perform procedures assigned a level of 21, 22, 66, 61, 77, or 77a without supervision. The Program Memorandum clearly included the same indicators for both the global and technical services. For example, the memorandum states that for 95860 & 95860-TC, the indicator is 6a. There are also sections of this memorandum that reference both the PC and the TC. This clearly shows that CMS recognized that PTs could bill for the professional component of the test. A copy of the Transmittal is included as an Appendix. On September 27, 2001, CMS issued a Transmittal (Transmittal 1725, Change Request 1756), which revised section 2070 of the Medicare Carriers Manual. This Transmittal stated that: "Section 2070-2070.1, Diagnostic X-Ray, Diagnostic Laboratory, and Other Diagnostic Tests, is revised to manualize Program Memorandum B-01-28 (released on April 19, 2001) regarding physician supervision of diagnostic tests...." CMS based its decision to allow physical therapists to bill for both the professional and technical components at least in part based on the level of clinical training and expertise physical therapists possess. All physical therapists are required to receive a graduate degree (either a master's degree or a clinical doctorate) from an accredited physical therapist program before taking the national licensure examination that allows them to practice. More than 92% of the 210 accredited academic institutions nationwide offering professional physical therapist education programs now offer the DPT degree ­ and more than 75% of all 2008 PT graduates hold a DPT degree. Neuromuscular anatomy and electrophysiology, including EMG/NCS testing, is included in PT education. Additionally, state licensure is required in each state in which a physical therapist practices. In addition, many physical therapists seek out additional training in this area by obtaining a specialist certification in clinical electrophysiology. In order to obtain this certification, the physical therapist must have at least 2000 hours of direct patient care in clinical electrophysiology within the last 10 years and 25% of this must occur within the last three years. Those wishing to obtain this certification must also have conducted a minimum of 500 EMG exams during the 2000 hours of experience. The physical therapists must submit evidence of clinical education in electrophysiologic testing and submit patient reports and test logs for services provided in the last three years. The level of training and experience required to obtain this certification demonstrates the level of skill physical therapists possess. It is important to note that CMS has a grandfathering provision that allows Medicare payment for EMGs/NCVs to physical therapists (without ABPTS certification) who have billed and been paid by Medicare for EMG/NCVs prior to May 2001. Finally, NGS has had a policy of reimbursing certified physical therapists for the professional component of EMG. There is no reason to reverse the policy that has been in effect. Physical therapists have been safely and effectively performing these services, which are within their scope in New York. Therefore, we strongly urge you to revise your draft LCD to ensure that physical therapists can continue to bill for both the technical and professional component of the EMG to accurately reflect Medicare's policy on physician supervision of diagnostic tests, which was issued in Program Memorandum B-01-28.

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Thank you for your attention to this matter. If you have further questions, please do not hesitate to contact Gayle Lee at 703-706-8549. We look forward to hearing from you soon. Sincerely,

R Scott Ward, PT, PhD President American Physical Therapy Association RSW:sn

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