The daughter of an 83-year-old stroke survivor thought she had found the answer. Her father, who suffered from dementia, had made remarkable progress in inpatient rehab, regaining the ability to walk and perform basic tasks. But once he was discharged, Medicare sent him to a home-health agency in a remote area where therapy was infrequent and poor in quality. He began to decline rapidly. Alarmed, she turned to Florida physical therapist Dr. Sean Wells, hoping he could keep her father from losing the progress he had fought so hard to gain.
But federal law made that impossible. It forbids non-Medicare participating physical therapists from working privately with patients whose care is covered by Medicare, so Wells was legally required to turn the man away. By the time Wells was finally allowed to treat him after the patient was discharged from Medicare, the damage was done. The man had lost much of his independence, requiring near-total assistance to stand or walk to the bathroom. His daughter watched in anguish as bureaucratic rules, not medical necessity, dictated her father’s care.
RFK JR. ASKS STATES FOR ‘BOLD, AUDACIOUS’ RURAL HEALTH FUNDING REQUESTS
Wells knows better than most what physical therapy can mean. As a teenager, he suffered a serious sports injury that could have changed his life. Instead, physical therapy restored his independence and inspired him to devote his career to helping others do the same. Today, from his Florida clinic, he frequently encounters seniors enrolled in Medicare who want to pay out-of-pocket to see the provider of their choice. Federal rules force him to tell them “no.”
Under this decades-old rule, most health professionals, such as doctors, dentists, psychologists, nurse practitioners, and more, can “opt out” of the program and treat Medicare patients directly for cash. This arrangement spares patients weeks of waiting and mountains of paperwork, letting them get the care they want from their chosen provider. In these cases, a patient can pay out of pocket, skip Medicare billing entirely, and start treatment right away.
But physical therapists are barred from this arrangement, even if it’s faster, cheaper, and better for the patient.
There is no rational explanation for singling out physical therapists in this way. Physical therapists provide essential medical services as critical to recovery and quality of life as those offered by other providers. It’s a doctoral-level profession, regulated in every state, and PTs are permitted to operate largely free of physician oversight in independent practices. Yet federal law targets physical therapists with different, harsher treatment than other medical providers.
There’s already a nationwide shortage of physical therapists — a recent survey reported that 72% are either at full capacity or unable to meet local demand. This Medicare rule exacerbates the resulting lack of care.
Wells has witnessed seniors left in pain, waiting weeks for an appointment with a Medicare-approved provider. He has even been forced to turn away patients with whom he had long-standing relationships, merely because they aged into Medicare.
By 2030, every baby boomer will be over 65, meaning millions will need help recovering from surgery, regaining mobility after illness or stroke, or staying active enough to avoid decline. As more people enter Medicare, they’ll become locked out of options.
This unfair restriction is not only ethically dubious, it also rests on one of the most widely criticized Supreme Court precedents: 1942’s Wickard v. Filburn. The Commerce Clause in Article I of the Constitution gives Congress the power to regulate interstate commerce — commerce that crosses state lines — while leaving purely in-state and local transactions to state regulators.
The notorious Wickard case changed that understanding of the Commerce Clause. In Wickard, the court said a farmer growing wheat for his own use could be regulated under the Commerce Clause because he might otherwise buy wheat on the open interstate market. Wickard’s sweeping ruling allowed Congress to claim power over wholly in-state economic activity if, in the aggregate, it “substantially affects” interstate commerce.
A purely local, cash transaction between a physical therapist and a patient has no real connection to interstate commerce. The entire point is to avoid a federal program. Yet the Commerce Clause has been stretched so far that the government claims these local transactions are within Congress’s reach. A claim that erases any meaningful limit on federal power.
HOUSE GOP EYES ANTITRUST IN VISION INSURANCE MARKET
Dr. Wells has filed a civil rights lawsuit, arguing that the law arbitrarily treats him differently from other medical providers and exceeds Congress’s powers under the Commerce Clause. It’s an uphill battle. Recently, the court has been reluctant to strike down economic regulations. Still, a victory here could set an important precedent, restoring Wells’s right to work and his patients’ freedom to choose the care they need.
Wells hopes his lawsuit will help return healthcare decisions to where they belong: in the hands of patients and the providers they trust. After all, it’s the same freedom that once gave a teenage Wells his life back, and it would have allowed a concerned daughter to secure his care quickly.
Anastasia Boden and Joshua Polk are attorneys at the Pacific Legal Foundation, a nonprofit law firm that defends constitutional rights. They represent Dr. Sean Wells in his civil rights lawsuit.
