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ACTS Testimony to Joint Legislative Budget Hearing Health & Medicaid - February 12, 2018 


My name is Steven Sanders. I am the Executive Director of ACTS (Agencies for Children’s Therapy Services). ACTS is a statewide association of agencies that provide the majority of services in the Early Intervention Program.


As you know the Early Intervention Program which was established 25 years ago provides critically needed services to toddlers from birth to three years old. This program which is overseen by the Department of Health helps 70,000 young children and their families each year to remediate early childhood disabilities and work towards that essential bridge to school age readiness and beyond.


Early Intervention is perhaps the single most important service that the state provides in the earliest stages of childhood because through the assistance of our Early Intervention agencies special young children can overcome a host of learning challenges and even lessen the impact of serious developmental disabilities such as autism as well as emotional and intellectual problems. In doing so, tens of millions of dollars are saved each year from avoided and far more expensive costs to the State especially in pre-school and school age special education due to the successful efforts of Early Intervention agencies.


This brings us to the Executive proposed budget changes in the Early Intervention Program. Most of the Governor’s recommendations, the Legislature has seen before:


The changes to the evaluation of children in the first instance are very problematic. The Governor seeks to end multi-disciplinary evaluations which are the bedrock of this program. In its place the Governor would have screenings, partial evaluations, and use other less targeted medical diagnosis as the basis for determining what services may be needed for a child. The Governor’s intent is to reduce evaluations by trying to weed out those children who may not need Early Intervention services or who have been “pre-qualified”. The danger is that by eliminating children from a full comprehensive evaluation when referred to the program by parents or health professionals many of these kids will not have their problems properly identified and will inevitably fall through the cracks and not receive the services that they need and are entitled to. There will ultimately be no cost savings whatsoever and probably the opposite. I can say this confidently because when a child is not helped in the Early Intervention Program those unaddressed problems becomes a much greater expense through special education costs incurred in our public and private schools. What the Governor fails to recognize is that Early Intervention is NOT a cost driver, it is a cost saver. The more children who are successfully identified through evaluations and then treated, the more money the State saves over time. This is a classic case of “if it’s not broke don’t fix it”! The Legislature should rightly REJECT those ill-advised proposals again.


The Governor also makes a number of changes impacting the Early Intervention Program in Insurance Law. Chief among them is his proposal that the Individual Family Service Plan (IFSP) or a physician’s script should constitute the justification for necessary services to be paid for by commercial insurance or Medicaid. Commercial Insurance does not pay for it fair share of Early Intervention services. On average it rejects nearly 85% of all claims submitted to it each year. This has been true for almost as many years as the program has existed. The chief reason for insurance denials of payment is the lack of “prior approval” or the purported absence of “medical necessity”. This proposal by the Governor would largely remedy that pretext for denying reimbursement, and save the state and counties millions of dollars. As such this recommendation should be ACCEPTED by the Legislature.


A new proposal by the Governor is his recommendation that Early Intervention providers should receive a rate increase (of 2%) which it has not had in 16 years for home based programs. No rate increase during that time, no COLA, no nothing. This, in spite of the fact that service providers have been tasked with enormous new responsibilities in recent years which have been costly and time consuming. The problem with what the Governor proposes is that it comes with knotty strings attached which would likely cause even greater expense and certainly would delay reimbursement payments to providers. In order for the 2% increase to become effective service providers would have to appeal all denials and have those appeals adjudicated before any payments would be made to those providers. Such a new layer of work will hold up reimbursements by weeks if not months and be a new cost of doing business for many agencies that are barely getting by now. Finally even the Governor acknowledges that the 2% rate increase may not apply to Medicaid claims. If that is the case then the aggregate rate increase would be less than 1%. Embattled and overburdened Early Intervention providers are entitled to a clean rate increase after nearly two decades of flat or reduced rates. It’s only fair and it is way past due.


If the Governor truly wishes to help Early Intervention providers and the families that they serve and maximize commercial insurance reimbursement, he should support a “Covered Lives” approach and assessment on the insurance industry as a substitute for direct billing. By doing so, the state and counties would save money. Moreover providers would not need to spend so much of their time chasing down commercial insurance denials and payments. This would free up more time and resources to concentrate on doing what they do best, which is providing essential and quality services to tens of thousands of vulnerable children each year… and giving them and their families a better future.


Thank you for this opportunity to testify and for all that the Legislature has done to support Early Intervention.




The ACTS Response to a Proposal by the Governor’s Ad-hoc Committee Charged with Making Recommendations for Changes to the New York State Medicaid Program and Services


On behalf of the association that I serve as Executive Director, Agencies for Children’s Therapy Services, (ACTS), I want to thank you for your diligent work with “The First 1,000 Days” initiative to improve the Medicaid relationship with providers. ACTS agencies provide nearly 60% of all Early Intervention services statewide each year. Our thirty five agencies operate throughout NYS but mostly in the downstate region.


I have reviewed your draft proposal menu. Some of them are intriguing, but one of them would be very problematic for Early Intervention and that is your proposal #12… the carve-in of Early Intervention into managed care. This is a proposal that my members could not support and in fact would need to oppose vigorously. Let me explain why.


As you know five years ago the billing for reimbursement of Early Intervention services changed radically. Before 2013 Counties were responsible for billing E.I. services and for paying providers. But that year the law changed that shifted the burden of billing insurance onto the shoulders of providers with some assistance from a State Fiscal Agent that was also created that year. In order to comply with this new billing paradigm providers were required to go to great expense and time to hire billing experts and accountants to manage this new task. None of this new expense was or is being reimbursed to providers. 


After a tumultuous first year of lengthy delays in payment and many problems with the adjudication of claims, part of the new system began to run more smoothly. That part was the Medicaid claims. The part which continues to be difficult is commercial insurance which denies approximately 85% of the claims submitted to those companies. Their annual aggregate remittance to this $600M annual program is about 2% or roughly $12M. That amount has not changed materially during the whole existence of the Early Intervention program since 1994. Providers, the Department (DOH) and the Fiscal Agent continues to struggle mightily with some of the processes of commercial insurance adjudication which is slow and uneven. Contrast that with Medicaid that approves nearly 80% of the claims submitted to it by providers and remits on those claims in a timely fashion. Those Medicaid remittances account for about 43% of the annual aggregate reimbursement roughly $260M.


Your Managed Care option # 12 would complicate a continuing tenuous situation for providers by removing the reliable insurance provider process of Medicaid billing and create an additional layer of bureaucracy with the commercial insurance private market place which is not working well for providers. Your option # 12 would establish a whole new set of problems, tasks and expenses for already beleaguered billing providers, many of whom have had to exit the E.I. program because the administrative billing workload became too time consuming and too costly to successfully manage along with rendering services.


If anything, providers want to minimize the interaction with commercial insurance in terms of having to bill directly with them and deal with the subsequent inevitable delays and additional requirements demanded by some of those insurers. The thought of providers having to navigate yet another new morass of managed care requirements with brand new financial demands and delays is a very bad prospect. It will cause more provider departures from the E.I. program and a greater capacity problem in finding qualified persons to serve our very vulnerable population of toddlers with special needs. It is a proposal that ACTS must vigorously oppose.


As I said at the outset, I applaud your efforts to streamline the Medicaid process and I understand that these are uncertain times in the health world. However trying to integrate managed care into the Early Intervention world would be like trying to fit a round peg into a square hole, it just does not fit unless you try to force the piece into the slot while having to damage the contours in doing so.


My final word on this subject is that Early Intervention is a cost saver for the state, and not a cost driver. Currently there are about 68,000 children in the E.I. Program each year. Probably more could be served if the state had the capacity to do so. For every child that is successfully served in E.I. by age three, the state saves untold tens of millions of dollars each year in pre-school and school age special education services that is AVOIDED because of the success in Early Intervention. But Early Intervention can only be as successful as the support given by the state to providers who render these critically needed services.


Option # 12 needs to be shelved.



Steven Sanders

Executive Director-- ACTS



Executive Director Steven Sanders

August 17, 2017



Good morning.

Thank you for opportunity to testify at this public hearing regarding the proposed regulations for the Early Intervention Program published on July 12, 2017. My name is Steven Sanders. I am Executive Director of Agencies for Children’s Therapy Services. ACTS is a statewide association of provider agencies and advocates. The agencies that I represent in the aggregate provide approximately 60% of the Early Intervention services statewide.


I have three areas of concern which I want to mention today. As a preface let me say that several of my concerns have to do with the vagueness of the language in the proposal that I am hoping can be easily explained today by one of the members of the Bureau of Early Intervention. It is very important to have this clarification today while there is still time to submit additional comments or to amend existing ones. I recognize that the public comment period expires on August 28.


First of all…the proposed regulation speaks to annual or lifetime caps on Early Intervention services as they relate to insurance coverage in Section 69-4.7(g)(3). The language of the proposed regulation, based on my understanding, says that non regulated plans that may impose lifetime or annual caps on services are not necessarily to be billed in the first instance before claiming can proceed to the Escrow Account. In order for such plans to be billed parents must first provide their consent. Is that a correct understanding of your proposed regulation language?


As I am sure you know the Public Health Law states in section 2559 that “payments made for early intervention services under an insurance policy or health benefit plan, including payments made by the medical assistance program or other governmental third party payor, which are provided as part of an IFSP pursuant to section 2545 of this title shall NOT be applied by the insurer or plan administrator against any maximum lifetime or annual limits specified in the policy or health benefits plan…”  


So my question is, is there anything in these proposed regulations that changes the language of section 2559? If so ACTS would strenuously disagree. My belief is that these proposed regulations on this point merely track the exact language already found in section 2559. But if my understanding is not correct the Department must not try to implement policy which is contrary to the existing state law and could curtail parental rights and benefits regarding insurance coverage.



My second area of concern deals with proposed screenings or the use of pre-existing medical records as a substitute for Multi-Disciplinary Evaluations in Section 69-4.1(n)(o) and Section 69-4.8. Although federal rules may allow for such a substitution and in some cases that may be justified, this is an area that I propose great caution and much more detail. The foundation of the Early Intervention Program is based on accurate and comprehensive evaluations which are done by individuals who are thoroughly familiar with the conditions that lead to early intervention, the protocols of the evaluation process, and the development of an IFSP. We tinker with that process at the risk of undermining the integrity of the program. 


While I can imagine some circumstance where an MDE may not be necessary given other information that may be available, I can also imagine circumstances where in spite of a physician’s observations, they may not be either dispositive or specific to the particular deficits that a toddler may have. Medical records are often not nearly targeted enough to discern what the toddler may require. The New York State Early Intervention Program has been as successful as it has been for all these years in large part because we have had very reliable and accurate evaluations. There is no clear study that I am aware of to suggest that forgoing an MDE will save the state any revenue. In some cases an MDE will still need to be done either by a parent’s choosing or for other reasons. We ought not fix what is not broke. This also appears to be language similar to what the Executive has recommended in state budget proposals which have been rejected by the Legislature. 


At a minimum if there are circumstances where other kinds of referrals will suffice in place of a full MDE, those circumstances must be clearly delineated to insure that the toddler is receiving the appropriate assessment and the family is receiving the very best analysis of the special needs for their child that requires attention. Screenings in lieu of comprehensive MDE’s without proper guidelines threatens the efficacy of the Early Intervention Program and should only be undertaken where it is clear that such a substitution will not interfere with the most appropriate evaluation process for that child. And although parents are entitled to insist on a full MDE by the evaluator of their choosing, that right needs to be clearly and explicitly communicated to the parents. 



My third and vital area of concern deals with the proposed changes known as the “conflict of interest’” regarding evaluators and service providers in Section 69-4.11(a)(7)(ii)(a). The Department proposes to amend regulations from 2012 which virtually prohibited any service to be rendered by a party or related party that was responsible for the evaluation of a particular child. The 2012 regulations were flawed in many respects. Not the least of which was the ill-conceived notion that was the underpinning of that policy which inferred that there are improper or inflated evaluations being conducted by some in the hopes that they may be assigned unnecessarily expensive services. This supposition was never supported by any pertinent information or actual cases of improper evaluations. It ignores the fact that evaluators are already prohibited from making any recommendations regarding the extent of services and certainly may not recommend who will be assigned such services. That responsibility already is the purview of the IFSP team and the Early Intervention Official (EIO) from the municipality. Such unfounded insinuations is deeply offensive to the professional licensed evaluators who by all accounts continue to do expert and honest work. Would we bar a physician form making a diagnosis and also providing treatment for which they are reimbursed, often times by government funds? Of course not.


While the proposed amendment is an improvement over the 2012 regulation it is nonetheless still flawed in significant ways. If implemented it would lead to uneven interpretation and inconsistent enforcement from county to county. It might also result in a loss of evaluators in the field. It would likely cause parents being deprived of the best service providers for their children from agencies or individuals with whom they have developed a relationship of trust and confidence. 


The proposed regulation makes the presumptive policy that evaluators, or those who employ the evaluator, should not also render services except if the EIO approves. There are no guidelines that are suggested to the EIO’s for when their “approval” should be withheld. Everything is left to their discretion in assigning services with a presumption that evaluators should not render services to the same child they evaluated. This presumption will undoubtedly be interpreted and applied differently in different counties according to the whims of the EIO. Is the Department suggesting that EIO’s are inherently more trustworthy than evaluators?


ACTS and other associations believe that such regulations are not justified and could very likely lead to unintended consequences that may cause more problems than any supposed problem that the regulation seeks to remedy. Some of those unintended consequences will surely result in worsening an already problematic capacity problem by reducing the pool of qualified providers and evaluators. And it may extend the time that eligible children wait for services to begin. We should not risk undermining the Program when there is really no data or evidence which suggests that changes are warranted. However if the Department is still intent on imposing some additional regulations regarding the conduct of evaluators who might also provide services, I offer two alternatives to the proposed language in HTL-28-17-00009-P:


1.   The Department should adopt the same language that that was enacted into law in 2013 dealing with special education evaluations and services found in Section 4410… paragraph C of subdivision 4 of the State Education Law. In that law when services are assigned to the same party that did the evaluation it must be attested to by the Committee on Pre School Special Education that such assignment is “appropriate” and the Commissioner of the State Education Department is given such notice. In the four years since this law has been in existence there have been no problems that I am aware of.

2.   Another better alternative to the Department’s proposed regulation would be to eliminate the presumption that evaluators are disqualified from also rendering services by substituting language which would state “evaluators who conduct evaluations of a child or the approved agency which employs or contracts with the evaluator may provide services to that child unless the EIO finds such services would be inappropriate.” This language would restore the balance of authority to award services to any service provider that may be the best fit for the child and the parents.


Either of those two alternative amendments to the Department’s proposed regulation would be far superior to the language currently being proposed and would also have the virtue of removing aspersions that are being (perhaps inadvertently) cast upon the integrity of evaluators.


ACTS appreciates the very diligent work being done by the Bureau of Early Intervention every day of the year. And in the main I think we agree that our Early Intervention Program is valuable and is working. Research confirms that for every dollar invested in Early Intervention up to seven dollars is saved by avoided Special Education costs for children subsequent to the age of three.


Through the partnership of providers and the Department, countless thousands of children and their families have been immeasurably helped for over twenty years. Young children have the promise of a better future because of our collaboration. The members of ACTS look forward to our continued productive partnership and we thank you for affording us the opportunity to help shape best practices and best policy for the Early Intervention Program. 





Steven Sanders, ACTS Executive Director testified at the Legislative Hearings on January 25, 2016, examining the Governor’s Budget proposals regarding the Early Intervention Program. ACTS is strongly OPPOSED to changes recommended by the Governor to change the evaluation process which would make it much less rigorous and more bureaucratic in many cases by adding a new level of pre- screening which will delay the onset of services. ACTS SUPPORTS the Governor’s proposals to amend the Insurance Law that would expedite the adjudication of claims for commercial insurance and hopefully increase commercial insurance payments. ACTS is also gratified that the Governor saw fit to recommend an increase in rates to offset some of the new administrative billing tasks that providers have had to deal with in the past three years. This is the first ever increase that this Governor has proposed. That rate increase we are hoping will be enhanced by the Legislature. The State budget is expected to be enacted by March 31.

Testimony to Joint Legislative Budget Hearing Health and Medicaid January 25 2016



ACTS thanks the many, many people who responded to our e-mails last month to protest some of the harmful Early Intervention proposals made by the Governor in the State budget. Thanks in large part to your efforts we are delighted to report that NO CHANGES were made to the program that will hurt or impede services to at risk children, their families and the providers who render services. In REJECTING these proposals the Legislature understood that the Early Intervention Program does not need more complicated changes, and especially ones that will undermine providers.

However, the Legislature was unable to include any rate increase for hard strapped providers this year. That is a matter of great concern to ACTS and something that we will continue to advocate and fight for. But we ARE grateful to the Legislature for ensuring that the integrity of the Early Intervention Program and the vital services we provide was maintained in this year's State budget. 



The 2015-16 State budget was enacted on March 31, 2015.  The Governor proposed regional rates for SEIT programs to start in three months, on July 1, 2015. ACTS took a more cautious position advocating for regional rates to be implemented with more time and thought so as to get it right and not be rushed with all kinds of unintended consequences of a poorly devised policy, (THINK Early Intervention and the fiscal agent!). The language in the budget will read… “On or before the 2016-17 school year and thereafter, to be phased in over no more than four years from the starting year, the (SED) commissioner, subject to the approval of the director of the budget, shall establish regional tuition rates for special education Itinerant services based on average actual costs in accordance with a methodology established pursuant to subdivision four of section forty four hundred five of this article. That last part of that language essentially requires SED to develop SEIT regional rates and associated policies through the rule making process by proposing a regulation with a public comment opportunity. 


There are ZERO changes (for better or worse) in Early Intervention. ACTS lobbied hard and successfully for no further changes to the E.I. program that would cause more responsibilities or work for hard strapped agencies and providers who have been beset with new and unreimbursed administrative tasks over the past several years.






ACTS demands that the State follow the law and insure that Early Intervention providers are paid within 90 days. ACTS has contacted the Fiscal Agent, the Department of Health and the Governor’s office to remind them that the Public Health Law specifies that providers be reimbursed for ALL their approved costs at least within three months. Since the advent of the State Fiscal Agent back in April, 2013, EI providers have commonly been made to wait for 6 months and longer before their claims have been paid. This must stop and the law must be obeyed. ACTS is taking the appropriate steps to insure timely reimbursements to agencies and providers. The following letter has been sent:


August 1, 2014


Mr. Rick Dwyer, Project Manager

Mr. Jamie Kilpatrick, Deputy Project Manager

Public Consulting Group (PCG)

148 State Street, Tenth Floor

Boston, Massachusetts 02109


Dear Mr. Dwyer and Mr. Kilpatrick,


On behalf of the providers of ACTS (Agencies for Children’s Therapy Services), we wish to thank PCG (the State Fiscal Agent) for your efforts in coordinating Early Intervention payments and information. You are probably aware that the ACTS members collectively provide a majority of the services in the Early Intervention Program (EIP).


Your work system wide and your help to individual providers with particular problems is appreciated. I also note that as PCG is approaching the first anniversary of assuming financial management of the EIP pursuant to law, PCG has certainly made strides towards stabilizing the various systems and payment constructs. When you assumed management last Fall the EIP as it related to timely payments to providers was totally out of control, chaotic and threatening the financial viability of many Early Intervention (EI) agencies and individual providers.


We acknowledge your efforts to deal with the myriad problems of a billing process that clearly was prematurely implemented, and we appreciate the system improvements. However, even now many providers are NOT being paid in a timely manner.


Cash flow is the lifeline of providers. If there is no reliability as to when agencies will be reimbursed for their expenditures pursuant to claims and vouchers submitted to the Fiscal Agent, their ability to pay their obligations is put at risk as are the services they provide to vulnerable children of this State.


When in 2012 the State Legislature passed the measure which established a State Fiscal Agent to be responsible for the financial management of the EIP, the Legislature DID NOT change the binding rule set forth in Section 2557(1) of the Public Health Law which states explicitly that payment of “ALL approved costs” to service providers and others shall be made “at least quarterly by the appropriate governing body…upon vouchers presented and audited in the same manner as the case of other claims against the municipality.” Approved Early Intervention services (and subsequent claims) are defined in Section 2541(7) of the Public Health Law. Furthermore Section 2559(3)(iii) of the Public Health Law specifies that providers shall submit those incurred costs to the Fiscal Agent for claiming payment.


Put quite simply…payment of “ALL approved costs” and doing so “at least quarterly” could not be more clear or explicit.


There is absolutely nothing in the law or past practices to suggest that the Fiscal Agent is authorized to make providers wait until commercial insurance or Medicaid has adjudicated a claim before a provider can be reimbursed for their “approved costs.” Quite the contrary. Prior to the advent of the State Fiscal Agent, municipalities who were then responsible for paying providers did so within three months of receiving their invoices, pursuant to instructions from the Public Health Law sections that I have cited. In most counties, that was accomplished in much less than three months.


In fact the law only refers to the requirement that providers (through the Fiscal Agent) must first “seek payment” of their claims from third party payors prior to municipalities being billed for such services. The law DOES NOT say that such claims must first be adjudicated by third party payors prior to municipalities being billed for their contribution into the escrow account from which the Fiscal Agent makes direct payments to providers which again, must be made “at least quarterly”. There is a world of difference between “seeking payment” and “adjudication”. The Fiscal Agent’s practice of waiting for third party payors to adjudicate a claim prior to municipalities being billed, and providers being paid, has no basis in law and is contrary to legislative intent and the history of the Early Intervention Program.


As for “approved costs”…that refers NOT to claims after they have been processed by commercial insurance or Medicaid, but rather to provider billable costs that are appropriate to the Early Intervention Program according to the Department of Health. That IS and always has been the meaning of “approved costs”. In fact if the adjudication of a claim were the benchmark for determining “approved costs” then the only costs that would fall into that category would be those approved and paid for through third party or government payor insurance plans. That is totally illogical because such “approved” costs would already have been paid by such third party or government payors leaving only “unapproved” costs to be reimbursed to providers from the escrow account by the Fiscal Agent. That is not what Section 2557(1)(2) and 2547(2) of the Public Health Law provides nor what the Legislature intended.


Considering the foregoing and in accordance with New York State law, ACTS demands that the Fiscal Agent remit to its member agencies all approved costs related to Early Intervention upon the submission of vouchers within the period of time specified in the Public Health Law (Section 2557). If the Fiscal Agent fails to do this, it will be in willful violation of the law and subject to the appropriate remedies in the courts.


If you disagree with our views set forth here I would appreciate knowing your reasoning. Otherwise I will presume that you concur.


ACTS again thanks you and your colleagues for your efforts to improve the Early Intervention payment procedures. We hope, but also insist, that those efforts in the future will be consistent with the law.





Steven Sanders

Executive Director - ACTS





The State Supreme Court rules in favor of the ACTS lawsuit and invalidates State regulations, which prevented Early intervention providers and evaluators from working together. The decision also invalidates the regulations capping executive compensation and the limits that were imposed on administrative expenditures in the Early Intervention Program.


This legal victory restores the balance of power in State Government. It basically says that the Executive branch did not have the authority to create policy that is reserved for the State Legislature. The State has the right to appeal this decision to the Appellate Division. It remains to be seen if they will do so. But for now those illegally imposed regulations cease to exist and cannot be enforced.





ACTS is extremely disappointed with the Governor for his failure to include any meaningful reform of the Early intervention billing system which has caused so much chaos, uncompensated work for providers, and lengthy delays in reimbursements for a year. It also jeopardizes the availability of critically needed services to families of at risk toddlers.


After all of the efforts of both the Legislature as well as providers of services and thousands of families, all the Governor would agree to in this budget was to insure that claims submitted between April 1, 2013 through June 30, 2013 would be finally paid…on May 15. That is entirely insufficient and sadly leaves the very flawed billing process unchanged. ACTS intends to continue to press this issue with the Legislature during the upcoming weeks as the Albany session continues.


Most of the Governor’s proposed changes to SEIT were rejected by the Legislature including his proposal for a competitive bid process for SEIT contracts and approval in New York City. Also deleted from the final budget agreement was the Governor’s proposal to establish regional rates to replace the cost based system currently in effect. The Governor had also recommended that the current tuition based reimbursement be changed to an attendance based Fee For Service on July 1, 2014. That change has been delayed by the Legislature to occur a year later on July 1, 2015.


ACTS will continue to weigh all our legislative and political options in an effort to arrive at a sound policy of consensus for Early Intervention as well as SEIT as opposed to unilateral decisions made by essentially only one person…the Governor. This inherently results in a very bad decision making process and an even worse outcome.

Press Conference in Albany March 5th 2013



On February 3, 2014, this testimony was delivered to the Health Committee Budget Hearing by ACTS Executive Director Steven Sanders, who for 28 years was a Member of the State Assembly and one of the original sponsors of the law creating Early Intervention: 


Chairman DeFrancisco, Chairman Farrell, Chairman Hannon, Chairman Gottfried and Members of this Joint Budget Committee

My name is Steven Sanders.  I am Executive Director of ACTS, an association of agencies that provide a majority of the Early Intervention services statewide. 

Sometimes the very worst policy decisions are the decisions to do nothing. Proposing nothing is as surely a budget choice as proposing something…and that policy choice carries real consequence. Imagine for a moment a breakout of an infectious disease threatening the wellbeing of tens of thousands of toddlers, and in the face of that crisis the Governor and the Department of Health chose to recommend no action in the budget…just status quo.

Well that is exactly the policy recommendation of the Governor for the Early Intervention Program in crisis. After a year of chaos and an obviously flawed billing protocol implemented by the Department of Health last April, the Governor has proposed no change. Agencies and individual providers are waiting long months for reimbursement of services performed, and in some cases STILL waiting since April, May and June. As a result, programs for at risk children are also in jeopardy.

He has opted not to fix a system that continues to fail, despite the best efforts and dedication of officials at the Bureau of Early Intervention. It is not their fault. Like providers they too are overwhelmed by difficulties that defy solutions, and insurers who defy their responsibilities. The fault lies in the poorly conceived plan.  The Legislature was only given sparse details of that plan in the 2012 budget.

Providers and Legislators were promised and voted for a system of billing that bypassed the counties, and would be managed by a State Fiscal Agent. A system which the Department promised that payments would be processed promptly and that commercial insurance would be paying more of their fair share.

None of that has happened.  Providers large and small have been put at great financial risk, some operating on the edge of insolvency, undermining services.  In recent months reimbursements have actually slowed, not accelerated. And while counties have been relieved of much of their tasks and expenses, it has largely been the providers, and NOT the Fiscal Agent, who have absorbed enormous additional work to process claims. This has added dozens of hours of additional administrative work each week, uncompensated. In contrast counties WERE paid for much of their tasks of processing E.I. claims, to the tune of nearly $13 million each year statewide. Providers got the work but not the compensation.

As for payment by commercial insurance, according to the Department’s figures, after 10 months that payment is half of what historically was remitted. And contrary to the data given to you this morning by Commissioner Shah, providers have NOT been paid 91% of what they billed since April. The actual number is closer to 85% for nearly the whole year. That is because the Department does not include all claims submitted by providers in their calculation. That translates into over forty million dollars still owed providers, some of those unpaid claims actually going back eight, nine and even ten months!

This is not a success story by any metric or measurement. Put simply, it is a failure. It is threatening the viability of hundreds of providers and more importantly threatening the continuity of services for our most vulnerable toddlers. It degrades a program that for over 20 years has saved the state countless tens of millions of dollars EACH YEAR in avoided far more expensive special education costs. In the Executive’s view nothing is wrong, nothing needs fixing. I am here to tell you the Executive is wrong.

What is desperately needed is for the Legislature to repair what the Governor stubbornly refuses to acknowledge.

The prescription to restore the Early Intervention Program to good health has already been written. It is embodied in the legislation that has been introduced by Senator Hannon (S.6002), and Assemblyman Gottfried (A.8316). The measure would do what the Legislature THOUGHT it was doing two years ago: Require the State Fiscal Agent to act as the true intermediary between providers and third party payors. The Fiscal Agent would replace the functions administered by the counties prior to April 1. Isn’t that really the job of the Fiscal Agent? Isn’t that what the State is paying it $45 million to do?

Second and importantly, the bill would assure that providers are reimbursed, in whole, for their services within a specified period of time. The Department boasts that providers have been paid for “most” of their services.  Really?  Is this how the State operates?

After nearly a year providers are still waiting and waiting for reimbursements, uncertain when they might be paid. What other business would accept being paid for “most” of their contract or services? What lender or landlord would be satisfied with being paid for “most” of their bill? Would the State be content with taxpayers paying “most” of their tax obligation each year?

The commitments made by the Governor and the Department have not been kept because the problems are systemic. Making providers wait until commercial insurance gets around to adjudicating a claim, if ever, in order to be paid by anyone has been, and continues to be, a losing proposition.

In summary: Commercial insurance payments have declined not improved; Providers are not being paid promptly, and in some cases not at all. The Fiscal Agent is not doing most of the billing tasks. That work has fallen on providers increasing their time and expense all of which is uncompensated. A loss of time means less time for services. There are only so many hours in a week.

The Early Intervention Program continues in crisis. Parents and providers have pleaded with the Governor to do something. He refuses to respond or to act. Worse still, he asserts that nothing is wrong.

Now we beseech the Legislature to act and to correct the Governor’s poor policy choice of inaction in this budget.

THANK YOU for always listening and for being the champion for the Early Intervention community.






On January 28, 2014, this testimony was delivered to the Legislature Budget Hearing by ACTS Executive Director Steven Sanders, who for 28 years was  Member of the State Assembly and one of the original sponsors of the law creating Early Intervention:


Chairman DeFrancisco , Chairman Farrell, Chairman Flanagan, Chairwoman Nolan and Members of this Joint Budget Committee:

I thank you for this opportunity to testify today. My name is Steven Sanders. I am the Executive Director of ACTS…Agencies for Children’s Therapy Services. ACTS is an association of providers of pre-school special education and Early Intervention agencies from around this State.

Education is back in the forefront of the Governor’s budget proposals, as it should be. Ultimately we can all agree that there is no concern more important to our State’s future and economy than the education of ALL the children of this State.

The Governor highlighted early childhood education issues. Today I want to discuss one aspect:  insuring an efficient and adequate delivery system of services to preschoolers in need of special education programs in their home. It is commonly referred to as SEIT, special education itinerant teachers.

ACTS agrees that a payment methodology which replaces the cumbersome tuition based methodology predicated on a provider by provider cost determination is something that the State should consider. Establishing a regional rate for similar services of all providers in a region is a sensible concept, but must be done with great care and a thorough cost analysis.

Regional comparative costs of compensation, completion of session notes and other mandated paper work, travel time, coordination of related services, supervision of professional staff, billing and collection, cost reporting preparation   and other associated educational cost factors need to be assessed so that providers receive a sustainable rate to deliver a quality educational product for youngsters whose needs require in home instruction and help.

And while this may not be rocket science, neither is it such an easy and simple matter to arrive at the proper rate for each region of the state.

If all a regional rate is intended to do is to just drive down expenses to the state without regard to what the real costs may be, then the children who need these services will suffer. A cost study for each region must be scrupulously examined before regional rates can be established. This study should be done by the State Education Department and submitted to the Legislature for its review. It is foolish to think that such a comprehensive study can be properly accomplished and implemented in just a few months.

Moreover there will be inevitable adjustments that agencies will need to account for and incorporate in their finances and business models which will also take some time. This is especially true if the regional rate varies considerably from their current tuition rate. Indeed if such new rates are in substantial variance with existing rates, they may need to be phased in over several years. Once a regional rate is established and embedded it must be THE rate. It would then be the responsibility of providers to deliver the educational services at or below that cost line, with no “claw-backs” by SED.

In addition, any established rate will need to be indexed and adjusted for inflation as is the case under current methodology for current CPSE and CSE programs.  Otherwise, providers’ ability to continue to deliver needed services will be put into jeopardy over time.


So I strongly recommend that no transition to regional rates be planned prior to the 2015-16 School Year. It is essential that SEIT programs know what rate they can expect long before they must begin to deliver services based on this new methodology and payment expectations.  

The Governor also recommends that payment be based on actual services, similar to the Early Intervention Program. The idea is that payments will be available once the service is performed and then billed. This sequence works only if there is prompt remittance. With that caveat ACTS would support that proposal.

ACTS disagrees strenuously that the New York City School District be given special authority to award SEIT contracts based on an RFP process or competitive bid. That idea flies in the face of the regional rate concept. The regional rate idea works because it eliminates a lot of unnecessary bureaucracy both for providers and government and it treats SEIT providers in the same region equally and fairly.

To place New York City SEIT providers in a position where they must compete against one and other for approval, and inevitably try to low ball bids in order to receive contracts will surely compromise services for the children who need them the most. Education programs are not like construction contracts where the cost of material and labor can be negotiated. We should not want SEIT providers or any providers, to cut corners when they are delivering special education services. If NYC rates are substantially below rates in neighboring counties, teachers will accept work in counties outside of NYC resulting in fewer children receiving services in NYC.  All providers should receive a fair rate, set by the State and then provide excellent services to our most vulnerable students.

ACTS is dedicated to the proposition that pre-school special education, and SEIT in particular, should be provided always with great dedication and professional skill. Significant changes as those that the Governor proposes, if adopted, must be developed thoughtfully and not rushed creating the utter havoc we saw this past year with the billing changes to the Early Intervention Program.  We should be planning for a rational transition and not try to force big changes in just a matter of months in order to meet some arbitrary date or self-imposed political deadline. That is why I stress that such changes must not occur before the 2015-16 School Year.

ACTS is prepared to work with the Legislature and the State Education Department to assist in the planning. As always, we appreciate the opportunity afforded to us to present this testimony.  






On October 22, 2013, the State Assembly held important legislative Hearings in Albany into the problems with the Early Intervention billing transition and Fiscal Agent. Along with a number of other associations and providers ACTS presented the following testimony which was very well received by the panel of Legislators. ACTS will be following up with additional meetings and communications with members of the State Assembly and the State Senate in advance of their return to Session in January.  This testimony was delivered to the Legislature by ACTS Executive Director Steven Sanders, who for 28 years was a Member of the State Assembly and one of the original sponsors of the law creating Early Intervention:


Thank you for this opportunity to address the Assembly Committees on Health, Insurance and Oversight, regarding the critical issues impacting the Early Intervention Program, which for 20 years was the envy of the nation.


Early Intervention is estimated to save seven dollars for every dollar that the state invests. This is true because successful Early Intervention AVOIDS or REDUCES far more expensive Special Education services which multiplies costs to school districts and to the State significantly. Over 70,000 preschool toddlers need these critical services each year. They and their families are served by highly skilled and dedicated professionals and agencies.


Yet the Early Intervention Program has been unnecessarily placed in serious crisis this year.


Because of an ill-conceived transition process in the billing protocol resulting from a change in the law, for months this year providers were not paid, at all…and now nearly seven months into this transition, long delays in reimbursements, particularly for commercial insurance claims, persist. According to the DOH’s figures nearly 60% of commercial insurance “claims” since April STILL remain in limbo. That equates to over 70% of the actual dollar reimbursements still owed to providers!  A case in point: members of my association on average are still owed 77% of their commercial insurance claims.


The Department of Health would have you believe that things are going fine now. They most certainly are not. They may tell you that 85% of total claims have been responded to. However taking nearly seven months to reach that figure is not a measure of success. It is a statistic of futility and one that cannot be continued.  Many providers faced with insolvency resorted to financing costly loans using their homes and personal assets as collateral just to keep services to at risk children from ceasing.


How did a program that operated so well for two decades devolve so quickly in just a matter of months?

Fortunately the answer to that question is NOT complicated… nor are the remedies.


In 2012 Governor Cuomo proposed drastic changes to Early Intervention which would have delegated control of the program to commercial insurance, creating an odd managed care medical model, totally unsuited for this education readiness program. The Legislature correctly rejected that idea and instead approved what it thought were some cost saving and streamlining measures. Effective April of this year providers would contract directly with the State instead of local Counties.  A State Fiscal Agent was supposed to be established to manage all provider claims.


The measure also relieved counties of their time consuming responsibility of processing billing and recouping payments from third party payors. It was believed that the Fiscal Agent would assume most of those tasks on behalf of the State.


However no Fiscal Agent was in place when the transition began on April 1. Thus no claims were processed nor were any payments made for nearly two months.


The massive amount of paper work and interaction with commercial insurance companies previously handled by County governments, has somehow become almost the total responsibility of unprepared and uncompensated providers. Nobody expected this! These are early childhood professionals with advance degrees in learning therapy services. They are not hospitals or medical groups. They are not, and will never be, insurance billing experts.  It is foolish to believe that individual therapists or agencies can succeed in collecting more money from commercial insurance when local governments with its official powers and resources could not.   


And IF there was the thought that the Fiscal Agent would act as an intermediary between providers and insurance companies, that simply is not happening. Providers, large and small are incurring hours and hours of additional work each week and tens of thousands of dollars in additional unreimbursed costs. Once they submit their claims to the Fiscal Agent it becomes largely the responsibility of providers to deal with the overwhelming tangles and questions from insurance that inevitably follow.  THIS MUST CHANGE. Providers and agencies are not equipped to assume these extensive and time consuming tasks, and certainly not without any reimbursement. 


Moreover just three years ago the Department of Health spent millions of dollars installing a new computer tracking and billing system for Early Intervention called “NYEIS” (New York Early Intervention System). The detail and data on claims uploaded by every provider should be sufficient for the Fiscal Agent to submit clean claims without insurance companies subsequently making ever more demands for additional information.  

Before this change in the billing law most providers received payment of virtually 100% of their claims within about a month of their billing submission to their County government. And at a minimum they knew when to expect payment. Now, they have no idea how much or even when they can expect payments. THAT TOO MUST CHANGE.


I am quite certain that when the Legislature approved this new system of billing, most Members thought that the much heralded Fiscal Agent would be interacting with insurance to assure that providers would be paid within a reasonable time frame. That has NOT turned out to be the case.


It is CRITICAL to understand that the Fiscal Agent is supposed to pay providers whatever insurance will not. BUT the Fiscal Agent will not pay providers at all until insurance has decided how much of the claim (if any) they will pay. With commercial insurance in particular that process has proven to take months and months and months! And consequently providers must wait months and months and months to be paid for services rendered.


Providers cannot run their programs, pay their obligations, and serve their clients if they cannot have a reliable expectation of when they will be paid. Such a system is simply untenable and financially unsustainable… and terribly, terribly unfair. And it is jeopardizing services to your constituents.


 Sadly I do not anticipate that this situation will improve sufficiently without legislative correction.


The Bureau of Early Intervention has tried to ameliorate and resolve problems, and I give them much credit for their efforts and thank them for their help. It is appreciated. However there is only so much that they can or are willing to do within the context of the current law.


In order to restore some semblance of order and balance, providers must have prompt payment of their claims within a reasonable and finite time frame. And their overwhelming new administrative tasks must be both lessened and reimbursable.


This can be achieved. But in order to do so certain policy changes need to occur:


1)     Providers must be paid if not by commercial insurance or Medicaid then through the escrow account within about 30 days of when that claim is electronically submitted to insurance. If insurance entities do not adjudicate a claim within that period of time, then it must be the responsibility of the Fiscal Agent to immediately remit payment to providers and reconcile the accounts at such later point that insurance does finally adjudicate the claim.

2)     Claims from providers that are submitted through NYEIS should be first reviewed by the Fiscal Agent for completeness through appropriate software filters and then sent to Medicaid and commercial insurance for adjudication and payment.

3)     Whatever information is required to be provided through NYEIS should be considered sufficient for insurance adjudication.

4)     Providers and Service Coordinators must be reimbursed for their new administrative tasks and expenses.

5)     All remittance, information and payments should be sent by commercial insurance to the Fiscal Agent.   The Fiscal Agent will remit payment to the providers.


And here is another thought suggested by a prominent legislator: Since commercial insurance reimbursement only accounts for about 3% of the total E.I. payments which according to the Department of Health, is not expected to change much in the near future, why not avoid the billing morass altogether and simply assess a fee on insurance companies on a proportional basis to raise the equivalent revenue expected from those companies? It would save all parties much time and grief and allow services to be provided by therapists and agencies unimpeded, and probably more efficiently. There would be no additional cost to State and local governments; commercial insurance would be responsible for its fair share; and providers could be reimbursed by the Fiscal Agent promptly.  It is a fascinating idea.


But whatever road the Legislature chooses, it must not choose the path of status quo with the current system unchanged. That is a road pocked with more difficulties for providers and less access to services for children and their families.


Early Intervention was one of the most successful programs that this State ever created, providing desperately needed help to learning delayed youngsters and saving government tens of millions of dollars each year in avoided costs. It needs to be fixed, NOW, and restored as the exemplar that it was for 20 years.


One thing for sure… that one year old or two year old child needing services cannot wait a year or two. The clock will not stop while government hopes that the system will right itself. It will not, and wishing won’t make it so. What is required are amendments to the law as soon as the Legislature returns to Albany. A year in the life of a small child can make all the difference for better or for worse. PLEASE choose better. 



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