Unconstitutional Medicare rules create a wedge between patients and their providers
Imagine that after years of suffering from debilitating back pain, you finally found a physical therapist you love. Unlike the countless others you had tried in the past, this provider takes a holistic big-picture approach to your treatment plan. And the practice is mobile—ideal for those days when the pain makes it difficult to leave the house.
Better still, this doctor is innovative. Instead of battling layers of insurance bureaucracy that delay care and distort pricing, they use a straightforward cash-based model, with transparent prices and no red tape. This freedom allows them to bypass the middleman and focus entirely on tailoring care to your individual needs.
As far as physical therapists are concerned, you hit the jackpot. But then after years of progress together, you turn 65, transition into Medicare, and suddenly you’re no longer allowed to see them. Unfortunately, if you’re one of the 67 million Americans enrolled in Medicare, this could happen to you. Under the federal Medicare laws, patients are forbidden from seeing these kinds of physical therapists—non-Medicare providers—even if they want to pay for it out of their own pocket.
An innovative approach to physical therapy
Dr. Sean Wells of Northern Florida takes great pride in his physical therapy practice, which was one of the first in the state to use a cash-based model. It was a bold move for a practice to make at the time, but as Dr. Wells says, “I’ve been known to stick my neck out and be bold. And for me, something like this is exciting, especially if we can promote the change and open up the marketplace.”
Opting for a cash-based model means he doesn’t accept insurance—but this is a feature of the practice, not a bug. Bypassing insurance and accepting only out-of-pocket payments allows Dr. Wells to give his patients access to care they might otherwise not have had, which is particularly useful for those who come to him in need of long-term care after a stroke.
Dr. Wells is especially passionate about working with stroke patients. During his time teaching at Florida Gulf Coast University, he piloted a stroke study on walking and neuroplasticity.
Unfortunately, getting the long-term care you need after a stroke isn’t always possible. Typically, insurance caps physical therapy coverage at six to eight weeks, which isn’t nearly enough time for a patient recovering from a stroke.
“You’re going to tell me that after six weeks of stroke, someone’s going to be able to fully function and walk again? No,” he says.
Under a cash-based model, Dr. Wells can keep prices low enough to where patients are able to continue seeing him long-term without dealing with insurance. This has been a godsend for his stroke patients, many of whom are dealing with devastating effects on their body that have made everyday tasks feel impossible. And because his business is mobile, his patients don’t have to worry about transporting themselves to and from the doctor’s office.
Watching his patients progress and transform over their time together is the most rewarding part of the job for Dr. Wells. And his patients are grateful to him. He only wishes he was able to help more people without the government getting in the way.
Creating a wedge between doctor and patient
It’s not uncommon for new patients to come to Dr. Wells after their insurance stops covering physical therapy and they are still in need of care. Although he’d like to help, if these patients are on Medicare, which many are, federal law mandates that he must turn them away, even if they are willing to pay.
Under any other private insurance plan, seeing an out-of-network provider would mean paying out-of-pocket, which people often choose to do. But Medicare patients don’t have this option. Worse still, this rule is not applied equally to other medical professionals.
If you want to see a clinical psychologist who does not accept Medicare, for example, you would be allowed to contract privately with that doctor. The same opt-out rules apply to most other licensed providers, like doctors, nurse practitioners, and even social workers. Yet, physical therapists are excluded from the list.
There is no concern over the safety or qualifications of physical therapists. Like other licensed professionals, they must complete advanced education and obtain state licensure. Needless bureaucracy seems to be the only reason the rule exists.
As if this weren’t absurd enough already, the rule gets worse.
The Medicare opt-out rule is specifically for “medically necessary” treatment—like stroke rehabilitation. However, if the service being sought is not a medical necessity, then, and only then, can Medicare beneficiaries pay out-of-pocket for care.
For Dr. Wells, this bureaucratic technicality means having to turn away patients, even those he has already been seeing for years.
Dr. Wells has many older patients he sees in a wellness capacity where there is no medical need, like losing weight or improving balance. But there have been instances where, suddenly, the “well” patient has an episode, like a stroke or a total knee or hip replacement, which changes the nature of their work together. And once it becomes a medical issue, he has no choice but to say, “Sorry, you have to use the Medicare provider.”
His patients are usually floored by this response, but the physical therapist’s hands are tied. There is nothing he can do to help them without putting his own license and practice in jeopardy, along with facing serious fines and other penalties.
Dr. Wells has no interest in becoming a Medicare provider. Doing so would mean abandoning the cash-based model that allows him to provide innovative care to his patients in the first place. And as a licensed professional, he should be free to serve willing patients without the threat of fines or government retaliation.
Fighting back
Maryland-based physical therapist Dr. Scott Gardner has been growing increasingly frustrated with the unfair regulations placed on the industry. In 2024, he formed the United Physical Therapy Association (UPTA) to advocate for better policies on behalf of physical therapists, which is how he connected with Dr. Wells. UPTA, Dr. Wells, and Pacific Legal Foundation are now teaming up to challenge the Medicare opt-out rule in court.
The Constitution protects the right to equal treatment before the law and the right to earn a living free from government interference. Singling out physical therapists for exclusion from Medicare’s private-pay framework undermines those rights and leaves vulnerable patients with fewer options and worse outcomes.
Medicare patients deserve the freedom to choose their provider—even if that provider isn’t enrolled in a government program. A system that prevents highly trained physical therapists from caring for willing patients—while allowing nearly every other provider—unfairly limits physical therapists’ ability to earn a living as well as patients’ access to care.
Speaking on behalf of UPTA, Dr. Gardner says, “Regardless of the outcome, filing the lawsuit itself is a win. I think it demonstrates that our profession is tired of being relegated to the bottom of healthcare providers. We are Doctors of Physical Therapy. We make lives better. We save money in the healthcare system, and we need to be treated appropriately.”
When asked about the prospect of taking on the government in this case, Dr. Wells says, “I’m charged, I’m ready, and I’m excited.” He hopes that challenging the rule will remove the wedge between private citizens and their providers and help give individuals, regardless of age, the right to see the provider of their choice.
A system that prevents highly trained physical therapists from caring for willing patients—while allowing nearly every other provider—unfairly limits physical therapists’ ability to earn a living as well as patients’ access to care. And Pacific Legal Foundation is committed to helping UPTA and Dr. Wells stand up for their rights.
