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Kid's Can't Wait Letter to Governor Hochel - November 2022

Kids Can't Wait - Fact Sheet - Need for EI Rate Increase




Submitted by Steven Sanders, Executive Director-ACTS

December 16, 2022


ACTS is a statewide association of Early Intervention agencies whose members provide a majority of the Early Intervention services. We appreciate the opportunity to offer comments and recommendations regarding the OMIG Audit protocols.



ACTS agrees with and applauds the mission of OMIG. Created in 2006 OMIG was designed to root out corruption, abuse and waste in the New York State Medicaid Program. Ferreting out fraud is vital endeavor and necessary to both preserve confidence in Medicaid reimbursed programs as well as saving the taxpayers money. ACTS has always condemned those few providers who engage in this type of illegal behavior. It is costly to the state and it besmirches the reputation of the vast majority of honest hard working providers and service agencies.


The Early Intervention Program is vital to the state of New York because its providers and agencies deliver desperately needed services to infants and toddlers from birth to age three.

Study after study have affirmed that Early Intervention SAVES the state untold tens of millions of dollars each year in avoided and far more expensive costs that the state would need to expend to help and remediate the needs of young children and adolescents who did not receive Early Intervention services and who are now in other educational or service programs that would be much more costly. We all know that the time to help youngsters with learning or developmental deficits is at the earliest age. The older child becomes, the more difficult and the more costly. So the Early Intervention Program is so important to the state both from a human and financial standpoint.


I mention all this because the excellent Medicaid Inspector General Frank Walsh makes mention in his annual report of the need to “work collaboratively with the provider community and stakeholders.” This mutual collaboration and respect is key to a system that has the capacity to deliver high quality services to our youngest citizens. The state needs the work of Early Intervention agencies and our agencies need the oversight of OMIG to insure that fraud and corruption have no place in our program. In short this is a symbiotic relationship which benefits all.


My comments to the Audit Protocols for the Early Intervention Program agrees with the many audit protocols in place to insure integrity in the Early Intervention Program, BUT takes exception to a few of the planks that stray from the core mission of OMIG to identify fraud, abuse, and corruption but instead penalizes honest providers who may have made honest and easily correctable mistakes in their billing for services honestly rendered. As a former member of the State Assembly for 28 years I can say without qualification that it was never the intention of the Legislature which created the OMIG program 16 years ago that honest providers who may have made small and unintentional mistakes on their billing, which are easily corrected, be put upon with penalties and disallowances for such errors. We are all human and all make some mistakes. Most auditing agencies of government give the subjects of their audits exit conferences and opportunities to make technical corrections. So should OMIG in their stated spirit of “collaborative work with the provider community.”



*In Item # 3 ACTS believes that it is the IFSP that is more properly the document that should identify the eligibility and covered services for enrollment into the Early Intervention Program as opposed to the MDE


*In item #4  ACTS believes that when an evaluation is properly performed and all evaluation tools are used and clearly documented, the lack of mention of a particular service which is not needed must not be cause for full disallowance. For example…if services are to be performed in the home (as most are) the omission of a transportation assessment is a rational omission and must not be cause for a full disallowance. These evaluations are customized to some extent to meet the specific needs of the child. The health assessment included in the IFSP should also be sufficient. If in the future OMIG believes that even unneeded or unused services should still be iterated that should be PRSOPECTIVE in your guidance.


*In Item # 6 ACTS believes that since the IFSP is generated as a result of a team meeting which also includes municipal representatives, evaluators and parents…but it is the municipal representatives that make the final decisions, if there is an error which nobody caught, including the provider that mistake ought not be grounds for disallowance, but rather should be corrected.


*In Item # 8 ACTS believes and observes that if the agency did not provide the service coordination in the first instance and/or once the child has passes the age of three they were not required to have or maintain such information. The Service Coordination entity is responsible for that information. This information is also contained in NYEIS, but only until the child ages out of the Early Intervention Program. At that point that information becomes in assessable in NYEIS to the provider. Consequently for closed files only the agency that provided service coordination or services (after the age of three) when they transition to CPSE as well as the municipality has that information


*In Item # 13 ACTS believes that this is amongst the most SIGNIFICANT areas of concern. I refer back to language contained in the comments offered by the New York state Alliance for Children With Special Needs To paraphrase: Municipal directives around documentation governed the field prior to the transition to State Department of Health authority. As a result some municipalities such as New York City developed comprehensive manuals and offered guidance documents and directives to assure accountability and compliance. New York City providers were directed to use specific document forms to substantiate the delivery of Early Intervention services and verified by the parent and rendering therapist. This document was captioned

“SESSION NOTE”. However its contents included data points and verification signatures which extended beyond the standard therapist session note commonly found in health care systems in other municipalities. This single record contained ALL the required elements of both therapy session notes and the related service delivery log. As such this singular document satisfies the regulatory requirements governing session notes and service logs separately reflecting each element of required information.


It is also important to note the State Department of Health and the Bureau of Early Intervention maintained local enforcement authorities with each municipality even as the state took over contracting responsibilities from the municipalities in 2013. This is also iterated in the Provider Agreement with the State Department of Health. The State was well aware of these various forms of compliance and enforcement and never disagreed with the methods that were used in New York City. NEITHER SHOULD OMIG. It also should be noted that in 2020 and 2021 as a result of COVID everything was remote and a clinician was not physically present in the home to obtain signatures from the parent. The parent was asked to provide signatures by mail or electronically in some cases. Like in every other aspect of the state nothing went smoothly during the beginning of the COVID emergency and allowances must be made for that.



ACTS takes no exception to the vast majority of protocol items provided by OMIG. And I repeat we AGREE with the importance of accountability and oversight. We deplore those who abuse the system and we condemn those who commit fraud and engage in corrupt practices. However there must be fairness and flexibility built in to the audit practices. Unintentional and easily correctible errors must not be grounds for disallowance. Such rigidity is not usually found in other audit activities and is simply not equitable, fair or part of the core mission of OMIG. If OMIG is intent on changing the methods that have been properly used and sanctioned in the past by the Department of Health and the Bureau of Early Intervention then those changes can only be fairly implemented PROSPECTIVELY in 2023, and only after sufficient notice is given.


I close by saying what I trust that OMIG knows. The overwhelming number of Early Intervention providers are honest and very hard working. They always try to the best of their abilities to comply with regulations of which they are informed by the government entity that provides oversight. Small inconsequential errors must not be grounds for full disallowance of claims. What is most important is whether the provider rendered all the services that they are responsible for according to the IFSP and in a timely matter. ACTS also believes that disallowances must only be based on specific and actual claims found to be fraudulent or that might be rife with pervasive and serious errors and not calculated by some kind of extrapolation from claims not actually examined.  OMIG’s proper mission is to discover when that occurs and to punish or penalize those who abuse or corrupt the Early Intervention Program. ACTS appreciates the important role that OMIG fulfills. We stand ready and willing to help OMIG in that regard in any way that we can.




Public Comments Response to DOH Proposed Regulations HLT-39-22-00020-P

Submitted by Agencies for Children’s Therapy Services (ACTS),

Steven Sanders, Executive Director

November 25, 2022


ACTS is pleased to submit our comments and recommendations to the Proposed Regulations published in the New York State Register on September 28, 2022 which are amendments to the Early Intervention Program (EI).



As general principal ACTS is OPPOSED to any measures that would lessen access to children from needed services in the EI Program.  That could take the form of limiting important evaluations, or limiting the eligible pool of providers, or making services more scarce or difficult to access by parents or to render by providers. However, ACTS also recognizes that there are some changes that are proposed by operation of law or federal regulations that conform to certain changes. In those instances, while we may not agree we take no issue with those conforming amendments to state regulations.  Moreover, ACTS applauds the efforts and proposals which ADD new professionals to the list of Qualified Providers in the EI program and reduces clock hours from 1,600 to 1,000 hours as a requirement for on-the-job experience.  At a time when the EI program has lost over 2,000 rendering providers just since 2019, it is important to support and supplement existing therapists and to do all that is possible to reach as many children in need as possible by having a work force that can meet the IFSP mandates for every child.


As such:

ACTS OPPOSES the removal of School Psychologists from the definition of qualified professionals (69-4.1(al)(16)-(24).  The hundreds of school psychologists that have been authorized by law to render services through June 30, 2024 are an important part of the workforce resource.  Eliminating these very qualified professionals makes little sense when the EI Program suffers from an erosion of rendering providers.  The addition of the new four categories of professionals is no guarantee that the work of school psychologists will be replaced in the short run or even the long run. By taking this action it is entirely possible that the EI Program will have a net of fewer providers in the first year and perhaps for years to come.  Rather, it would make much better sense to adhere to the current law which sanctions school psychologists through June 30, 2024 and then reassess the workforce needs at that time.


ACTS OPPOSES reducing group sizes from a maximum of 12 to a maximum of 8. This drastic 33% reduction in class sizes will inevitably lead to fewer children being served and the need for more therapists being hired.  EI Providers are already having great difficulty hiring sufficient staff today. There are currently waiting lists for service slots that cannot be filled. If this new proposed standard of 8 is adopted, that problem will be magnified exponentially.  This is particularly true with children requiring ABA services.  Furthermore, if occupational and/or speech therapy is discontinued these mandated services will be lost to children that need them.  The fact that there is a projected savings of $200,000 to the State resulting from the change from a maximum of 12 children in a group session to 8 suggests that fewer services will be rendered and reimbursed.


ACTS OPPOSES the change in 69-4.30 regarding the delivery Supplemental Evaluations to ONLY be authorized in the IFSP and not be part of the MDE evaluation.  We believe that such a change contradicts requirements in the Early Intervention Program. Establishing a new regulation that Supplemental Evaluations are exclusively driven by the IFSP may prevent children from receiving the most appropriate services in a timely matter, or at all for that matter.  Children who commonly receive Supplemental Evaluations with delays involving motor, feeding and autism spectrum disorders will likely be affected the most. The proposed regulation suggests that ONLY if the child is eligible by the Core/MDE can a Supplemental Evaluation be recommended and only by the CORE/MDE Evaluation team.  Again, this will limit services that otherwise may be identified as a need for the child.  In short, if Supplemental Evaluations can only be approved at the IFSP meeting fewer services than needed will often result.


ACTS ALSO HAS CONCERNS about the time frame in which introductory service coordination training must be completed and when services may be furnished in relation to the Department approval (69-4.4(b). This change may delay when services may be rendered or result in agencies not being reimbursed for other services that in fact are rendered.


ACTS AGREES that the parents need ONLY sign session logs and not session notes (69-4.26). To a large extent signing both documents is redundant and adds a level of unnecessary burden on both parents and providers. HOWEVER, this standard needs to be applied to ALL COUNTIES.  Otherwise, there will be a different standard in adjoining counties which will cause confusion and unnecessary paperwork. Moreover, requiring parents to sign both the session notes and the weekly logs is largely redundant




ACTS appreciates and applauds the Bureau of Early Intervention for its thoughtful consideration of changes to the early Intervention Program that will enhance the delivery of quality services to the nearly 70,000 children and their families that rely on this critical developmental help for their infants and toddlers. However, we cannot help but comment that the greatest single change in the Program that will improve access to services is for a long overdue rate increase as endorsed by the EICC at their September meeting.  Reimbursement rates in the Program is actually LESS in 2022 than it was in 2010 and this in spite of inflation which has dramatically increased expenses and the addition of significant new responsibilities placed upon agencies and providers. A rate increase in 2023 will solidify the advances that these proposed regulations attempt to make. 








Good afternoon, I am Steven Sanders, Executive Director of Agencies for Children's Therapy Services. My association provides the majority of Early Intervention services in the State as well as Pre-School Special Education programs.


Some budget matters are complicated. The case for an Early Intervention rate increase, an oversight by the Executive, is not complicated… it is obvious and it is right.


For nearly two decades the program has received virtually no increase, no trend, no COLA. The Deficit Reduction Program cuts from twelve years ago of over 15% were never restored. And this despite the fact that during that period of time new non-reimbursable responsibilities were placed on Early Intervention providers who serve 70,000 at risk toddlers and their families.


The result of this neglect is that therapists are leaving the program in alarming numbers. They are migrating to other health or education related service venues where they can be compensated adequately for their professional skills, which in many cases requires advanced academic degrees.


No one should be surprised that in the past two years the Early Intervention Program has lost nearly 2,200 highly qualified therapists. That means fewer children are being served in the manner and frequency they need and are legally entitled to.


Last year the Legislature passed a law sponsored by Assembly Member Amy Paulin and Senator Elijah Reichlin-Melnick with the critically important backing of the Chairs of the Assembly and Senate Health Committees, Dick Gottfried and Gustavo Rivera that saves the State and Counties a combined $28M per year in Early Intervention costs by requiring commercial insurance to finally pay their fair share. The Executive calculates the State share of those savings to be $15.4M.


Those savings need to be reinvested into the program to help underwrite an 11% increase for these agency providers and therapists. That is the identical increase that the Governor has promised to providers of pre-school special education programs.


Those pre-school programs and children have much the same service needs as children in the Early Intervention Program. In fact, most of these children have aged out of Early Intervention and are now just a few months older. There is no rational reason or difference to exclude Early Intervention programs from the pre-school special education rate increase. The two programs are parallel in many respects. Pre- school special education professionals deserve that rate increase. But so do Early Intervention professionals…even more so.


Increased funding is not always the answer to every government problem, and even when it is, the state is not always in a position to respond accordingly. But when a program is in an existential crisis and hemorrhaging critically needed personnel because of insufficient pay from decades of frozen or lowered rates and the state has the necessary resources, there is no escaping the fact that adequate funding IS the answer. An 11% increase makes perfect sense by aligning the rate adjustment to pre-school special education programs. Better still that fair increase for Early Intervention can largely be paid for from the savings legislated in 2021.


The Assembly and Senate have an opportunity to put the Early Intervention Program on a more stable financial footing for the future and stop the exodus of needed therapists. And much of this can be accomplished by simply re-investing the Early Intervention savings you enacted last year.


You can correct the omission from the Executive budget recommendations.


The Legislature has always been the greatest ally for the Early Intervention Program and the 70,000 at risk toddlers and their families. We need your support now more than ever.


Thank You So Much 


 Submitted by Steven Sanders, Executive Director ACTS




Subject: S.5560-A / A.5539

Date: 07/26/2021 


To Governor Cuomo (and staff),


Shortly the Senate will be delivering S.5560-A / A.5339 for your consideration. This legislation would end direct billing to commercial insurance of Early Intervention services by adding the Program to the “Covered Lives” fund with a fair assessment.


The Assembly and the Senate passed the legislation with OVERWHELMING bi-partisan support. The reason for such a clarion affirmative vote is clear.


The Early Intervention Program which serves nearly 70,000 toddlers with learning or developmental disabilities is in trouble… and this legislation will insure its viability AND save the State and Counties tens of millions of dollars each year.


Since 2013 providers have been tasked with billing work to commercial insurance for remittance. This was formerly a responsibility of Counties. However the administrative overburden and miniscule return from commercial insurance caused Counties to seek elimination of that billing task. In the succeeding years that providers have been required to do that billing work there has been no change in the rate of reimbursement by commercial insurance from the years when that was a County government responsibility. They still REJECT about 85% of the claims submitted to them. Contrast that with Medicaid that APPROVES and reimburses over 70% of the same service claims in the Early Intervention Program.


The overall amount of reimbursed claims by commercial insurance of the grand total continues to be LESS THAN 2% per year…about $12 million, in spite of being billed nearly $80 million for Early Intervention services. The difference in what commercial insurance is billed and what they remit must be underwritten by the State and Counties. In other words, the State and Counties are subsidizing commercial insurance for their failure to fairly pay on Early Intervention claims.


But worse still, this crushing administrative burden now placed on service providers has driven agencies and therapists out of the Early Intervention field. The cost of this futile insurance billing and the time consumed doing this work, (which was never intended to be a provider responsibility), as well as the inevitable delays in insurance adjudicating the claims, has contributed to the loss of providers and a significant capacity problem in the Program. There are simply too few agencies and therapists to meet the demand of toddlers who desperately need these services. That has led to waiting lists for families and in some cases the unavailability of services that at risk toddlers deserve.


Moreover, successful Early Intervention avoids or at least mitigates the need later for more expensive Pre School and School Age Special Education. That saves School Districts and Counties untold tens of millions of dollars each year and lowers the State expense of “Public and Private Excess Cost Aid” in the State budget School Runs each year.


The pending legislation will address these long standing problems and finally require commercial insurance to reimburse their fair share of Early Intervention costs…albeit at a lower rate than Medicaid, but nonetheless a reasonable percentage. The State and Counties would each save over ten million dollars every per year. And the law would finally relieve service providers of the futile, costly and time consuming task of billing commercial insurance and chasing those claims.


This legislation is STRONGLY SUPPORTED by the New York State Association of Counties (NYSAC) and the New York State Association of County Health Officials (NYSACHO). Of course it is ENDORSED by scores of organizations throughout the State that represent children with disabilities and their families. The legislation is also RECOMMENDED to be enacted into law by the Early Intervention Coordinating Council (EICC), the official advisory body of the Bureau of Early Intervention.


Many of the over 800 bills passed by the State Legislature this past session are very important. However none will rescue such a critical endeavor as addressing the needs of at risk toddlers while also saving the State and local governments millions of dollars each year in unfair expenditures that rightly should be remitted by commercial insurance.


This is legislation that needs and merits the Governor’s approval.


Sincerely, Steven Sanders

Executive Director

Agencies for Children’s Therapy Services (ACTS)

90 State Street

Albany, New York 12207




OPINION: Gov. Cuomo, Make Insurance Pay Its Fair Share

Times Union 06/30/2021


 by Steve Sanders  


If there is such a thing as a “no brainer” for the Governor, then mandating insurance coverage and more clinical help for very young children with disabilities would surely be it.


These services are embodied in the state’s Early Intervention Program which was created back in the 1990’s to serve toddlers from birth to age three. Like programs for Pre K special education and public school, such services are free to parents whose children are diagnosed with a disability. It is paid for by commercial insurance or Medicaid for those families with coverage. For families without insurance the state and counties share the cost and reimburse the service providers.


Sounds like an ideal construct. Children get help to remediate their problems as toddlers saving the state and local governments $hundreds of millions in avoided and more complex costs later on. And 70,000 parents don’t have to worry about how to access and pay for their children’s needed help. What could go wrong?


Enter the lobbyists for private insurance companies. Their job is to protect their clients from paying their fair share of the cost of Early Intervention for the families who they insure.


These companies have evaded their responsibility since the inception of the Early Intervention Program. They are very good at collecting their premiums but not so good at paying for necessary services billed to them. Sound familiar? They find creative ways to deny nearly 85% of such claims year after year.


The result is that of the $700M annual cost, insurance only pays about $13M which amounts to a minuscule 2%. Whatever claims insurance rejects, the state and counties must pay the difference to the tune of tens of millions of dollars in added costs every year. Ultimately New York taxpayers foot the bill.


This year the Legislature said “enough already” and passed a bill REQUIRING commercial insurance to cover Early Intervention costs, as was always intended. The measure calls for insurance to reimburse about 50% of what is billed to them. Government insurance in the form of Medicaid historically has paid about 70% of claims submitted to it while commercial insurance approves only 15%.


Insisting that the insurance industry finally pay their fair share would allow providers to avoid the futile but expensive and time consuming efforts to pry loose payments from those recalcitrant companies and enable them to focus on clinical help for at risk kids while also saving the state and local governments $millions each year.


A “no brainer” right? No, not when offending the deep pocketed insurance industry.


This sensible and necessary legislation now awaits the Governor’s decision to approve or veto the bill. The Insurance lobby can be counted on to strenuously oppose this reform using all their resources to convince the Governor that the State and Counties should continue to subsidize them as they deny payment for legitimate claims.


How will this end? Sad to say, but sometimes the Governor’s desk is where good public policy ideas go to die in service to the special interests of well-heeled industries


-Mr. Sanders, a resident of Troy, is Executive Director of Agencies for Children’s Therapy Services. He was an Assemblyman for 28 years.






Submitted by ACTS July 9, 2021


I am Executive Director of Agencies for Children’s Therapy Services (ACTS). My association member agencies provide the majority of Early Intervention services to infants and toddlers in New York State. I am responding to the Department of Health’s Proposed Regulations published in the State Register of June 2, 2021…I.D. No. HLT-04-20-00003-RP.


This Proposed Regulation is intended to fulfill the commitment made by the Legislature and the Executive in the 2019-20 enacted budget to add Medicaid coverage to the 2011 law which REQUIRED commercial insurance to provide full reimbursement and coverage in their benefit plans for Applied Behavior Analysis (ABA) services. In that enacted budget there was an agreement that the inclusion would be made “administratively” if not by an amendment to the statute. That 2011 law omitted the same coverage for services to families and persons in need of ABA and enrolled in Medicaid, as well as full reimbursement to providers who serve the Medicaid population.


The Proposed Regulation amends Section 365-A of the Social Services Law to create parity in the policy regardless of the type of insurance that was provided. The respective chairs of the Assembly and Senate Health committees introduced legislation (A.299-A / S.1578-A) during the 2021 Legislative Session which would have accomplished the same purpose through an amendment to the 2011 statute. However that legislation was held in abeyance (in the Assembly) after the Proposed Regulation was published by the Department of Health last month.


It is important and necessary that the Proposed Regulation corrects the grievous injustice of not including full reimbursement of ABA services for persons covered by Medicaid and served by a qualified provider as was done for those covered by commercial insurance. This ten year long disparity represented a loss of rights to the same health treatment for less affluent persons and families who are enrolled in Medicaid and the providers who serve them, as compared with those covered by other types of insurance products.


In so doing the Adopted Regulation language must make clear that ABA services will be a covered benefit under Medicaid as it is for commercial insurance when provided by persons licensed, certified, exempt, or otherwise authorized under Article 167 of the New York State Education Law and includes certain unlicensed persons participating in the delivery of ABA services as part of a multidisciplinary team.


This regulation MUST be adopted as described to GUARANTEE that thousands of New Yorkers who qualify for ABA and are enrolled in Medicaid for health insurance derive the same benefits and access to those services as those who have commercial insurance coverage.


ACTS appreciates the opportunity to offer these comments to the above referenced Proposed Regulation as provided for by the State Administrative Procedure Act (SAPA) and the Department of Health.



Steven Sanders,

Executive Director-ACTS





Thank You for the opportunity to provide testimony regarding the Governor’s budget proposals for Fiscal Year 2021-22. My name is Steven Sanders. I am Executive Director of ACTS (Agencies for Children’s Therapy Services). The agencies that belong to ACTS provide the majority of services in the Early Intervention Program statewide, as well as preschool special education programs.


This has been a very unusual and extremely difficult year for everyone, not the least of whom are Early Intervention providers who serve infants and toddlers oftentimes in their homes. The families of those small fragile children have cried out for help even as in-home services were almost impossible. Agencies did their best to answer the call by reconfiguring services to teletherapy. But as you can imagine, when dealing with children under the age of three, that has been a real challenge.


As a result of COVID and the difficulty for parents to access evaluations or services, the Early Intervention Program enrollment significantly dropped this year and services provided was way less than was projected in last year’s budget. The savings to the State and Counties evenly split from the previous year will be about $100 million. But that also translates into a loss of revenue of $100 million for providers of Early Intervention. Those losses have caused some agencies to contract or to close, and therapists unable to derive sufficient income unable to continue in the Early Intervention Program. Of course, it’s the families that have lost vital services for their children who have suffered the most.


The State Budget now being negotiated offers us an opportunity to make the situation better. However, if we are not careful it could compound the problems going forward.


Without including Article VII language, the Executive none the less proposes to make changes to simply save money ($11.9 million)… but omits the single most responsible cost saving measure:


1.     The Executive wishes to expand on the use of teletherapy in the Early Intervention Program. That is a good thing because through this technology areas of the State can be served that for years have been underserved for one reason or the other. However, the Executive proposes to include a DISINCENTIVE to provide teletherapy by reducing the rate which is CURRENTLY in effect potentially by as much as 43%.  Such a reduction would make services via teletherapy untenable. This stands in contrast to many other states that have embraced teletherapy and kept the rate identical to in person services. They have made that decision because they recognize that serving toddlers and infants via teletherapy is MUCH HARDER than doing that in person. Also, since children have often moved in and out of teletherapy based on conditions, a dual rate will cause confusion and unnecessary administrative headaches. Just as a school teacher will tell you that instructing classes on line is harder and more stressful than in person, services to very small children are much more difficult through remote devices. The simple fact is that most therapists will opt to do services in person if the teletherapy rate is significantly reduced. That will drive more therapists away from such services and underserved populations, which is the opposite of what the Executive says that they wish to promote. The Executive also fails to acknowledge that there are costs to providers to significantly ramp up teletherapy as a service modality. New software, hardware and bandwidth will be needed in order to reach parts of the State previously unserved. For all these reasons ACTS SUPPORTS expanding the use of teletherapy where appropriate, but OPPOSES any lowering of the rate. We are NOT asking reimbursement for any new costs, just NO REDUCTION to the current rate.


2.     (A) The Executive proposes to “limit” Back to Back Extended Sessions. This recommendation will unjustifiably restrict services to autistic children in the Early Intervention program who are receiving vital ABA services CONTRARY to what clinicians have determined is necessary through the Individualized Family Service Plan (IFSP). Best practices in the industry agree that for most children on the spectrum somewhere between 10 to 20 hours of ABA services is required to have the positive impact on that child’s behavior. The Executive would make it virtually impossible for even the minimum of 10 hours to be provided. ACTS STRONGLY BELIEVES that the clinical experts and evaluators who formulate the IFSP must continue to be the ones who determine what level of services an autistic child, or any child, should receive.  


(B) The Executive also proposes to limit the size of group sessions in center based programs to no more than six children in a group. While this might appear to be a useful proposal, in reality it will deprive children of services. During the past year the Early Intervention Program has experienced a contraction of rendering therapists by over 20%...a loss of 3,400 skilled professionals. As a consequence, if the number of children in groups is limited to six, many hundreds if not thousands of children will be left without adequate services due to the lack of capacity. As such ACTS MUST OPPOSE this recommendation as a deprivation of services to children.



3.     Ever since the inception of the Early Intervention Program over 25 years ago commercial insurers have failed to pay their fair share of the cost of the program. They consistently REJECT about 85% of the claims that they receive every year. By contrast Medicaid reimburses claims at about 70% for the same services. Consequently, commercial insurance pays only 2% of the total services. This metric has remained constant for over two decades in spite of efforts by multiple Governors to increase the financial responsibility of commercial insurance. The answer is “COVERED LIVES”. That policy if expanded to include the Early Intervention Program would save the State and Counties millions of dollars each year by no longer having to unfairly pay for the portion of claims that commercial insurance arbitrarily refuses to remit to providers. If commercial insurance were assumed to be responsible for only 50% of the claims it receives each year, the savings to both the State and to Counties would be nearly $15 million each year. The NYS Association of Counties (NYSAC) joins EI associations in calling for this policy. The State and Counties have been subsidizing commercial insurance for their refusal to pay their fair share. Last year both houses of the Legislature proposed Covered Lives only to be rebuffed by the Executive. But this year is different and the Governor is listening carefully. ACTS EMPHATICALLY SUPPORTS the proposition that commercial insurance MUST finally contribute their fair proportionate share of the Early Intervention Program costs. COVERED LIVES is the only way to accomplish that.


ACTS recognizes that all sectors of the State must bear some involvement for addressing the State’s dire fiscal deficit. But the Early Intervention Program and its agency providers have already suffered a loss of $100 million as this State fiscal year comes to a close. Providers revamped their service models to meet the needs of tens of thousands of families across the State. They have incurred costs, and in some situations risked their own health in serving hard to reach at risk children. The suggestions I have made will both help to stabilize the Early Intervention Program going forward and create recurring savings to the State and Counties. By so doing, maybe a tiny modicum of good can come out of the dreadful last year.


Thank you for your consideration.





Thank You for this opportunity to testify. My name is Steven Sanders. I am Executive Director of Agencies for Children’s Therapy Services “ACTS”. This Association represents providers in the Early Intervention Program from across the state. ACTS members provide the majority of services to children who require Early Intervention services from birth to age three.


The has Governor correctly diagnosed the problem with the funding of the $700 million Early Intervention Program which serves 70,000 toddlers each year.


In his words Commercial Insurance funds LESS than 2% of total Early Intervention costs although 42% of children (in the program) have commercial insurance. This suggests that commercial insurers are approving (only) 15% of provider claims (submitted to commercial insurance). This proposal seeks to increase the percentage of total Early Intervention costs that commercial insurance funds.


Unfortunately after he got the diagnosis right he failed to come up with the remedy that will in fact cause the commercial insurance industry to pay their fair share of the cost of Early Intervention. And to illustrate that point all you need to really know is that while commercial insurance is approving only 15% of the claims it receives, government insurance for those who qualify approve nearly 75% of the claims submitted to it. These are claims for identical services that commercial insurance always denies. And when they deny a claim for reimbursement under their plans it is the State and the Counties that must pick up the tab to the tune of tens of Millions of dollars each and every year.


This is, and has been outrageous, scandalous, and a totally unjustified cost to the State and Counties who in essence have been subsidizing the commercial insurance industry now for decades. That needs to end.


But these two houses of the Legislature have known all that for years and in fact have tried to provide the right remedy to this problem. Left to their own devices, commercial insurance has proven year in and year out that they will always find creative ways to avoid their responsibility to pay for Early Intervention services. No matter what the Governor may have recommended in the past, and the Legislature may have approved, the needle for payment has never moved. Not last year, not the year before nor for the entire 26 years of this essential program.


But all is not lost. These two Houses had the right answer last year. In the 2019-20 budget the Assembly and the Senate each proposed that the Early Intervention Program be included in the Covered Lives policy. As you know Covered Lives is an assessment on commercial insurance instead of direct billing of individual claims. The assessment is that amount of reimbursement that the industry should be paying if they were fairly adjudicating claims instead of simply denying claims for frivolous reasons. Frankly we have learned through bitter and expensive experience that Covered Lives is the ONLY way to insure that commercial insurance pays its fair share as the Governor says he wants. Every other initiative has failed to produce that result.


In reality commercial insurance currently pays only about $13 million of the total $700 million program. Its fair share would easily be three times or even four times that amount. The difference between what they actually pay and what they should pay is borne by the State and the Counties…TENS OF MILLIONS OF DOLLARS EACH YEAR. What the Governor proposes in his Executive Budget will at best raise only an additional $1.6 million when fully implemented, and substantially less for the upcoming 2020-21 Fiscal Year.


Given the reality of this year’s budget challenges especially in health costs, and given the Governor’s new found zeal to require commercial insurance to cover Early Intervention costs fairly, there is finally reason to believe that the Governor will agree to Covered Lives if the Assembly and the Senate once again make that proposal in your individual Budget proposals.


The only other way for to compel commercial insurance to pay for their fair share of the cost of Early intervention would be for the Individual Family Service Plan (IFSP) to be considered in law as sufficient prior authorization to implement services AND to have commercial insurance pay for Early Intervention claims. Such a change in law would guarantee the solvency of the program for providers and also save the state and counties tens of millions of dollars each year.


So I thank you for what you have tried to do in the past and I urge you to continue this year. I believe that the essential three way agreement for Early Intervention is finally attainable. GOOD LUCK in your important work ahead. The children and families of this state depend on you for your leadership.






I am Steven Sanders, Executive Director of ACTS (Agencies for Children’s Therapy Services). ACTS is a statewide association of Preschool Special Education agency providers as well as Early Intervention agency providers. The following are comments regarding the proposed regulation: I.D. No. EDU-40-18-00009-P as published in the New York State Register on October 3, 2018.



The one item of the proposed rulemaking that I wish to draw your attention to is found in Section 2 of the proposal which would “add a new subdivision (ppp)of section 200.1 of the Regulations of the Commissioner.”


This new subdivision comes about as a result of legislation enacted into law in 2017, (Chapter 429). The specific legislation is contained in Senate Bill S.1694-A (Marcellino) and Assembly Bill A. 982-A (Nolan). A reading of the bill and the sponsors memo reveals the clear purpose and intent of the legislation. The sponsors intended to relieve School districts that “WISH” to provide evaluations for services to preschool children from having to go through the burden of applying to the State Education Department for approval… provided that they have staff who are appropriately licensed or certified.


The sponsors logic is contained in the written memorandum accompanying the bill which states first and foremost in its subheading “Purpose” that the legislation is to eliminate additional paperwork for school districts which WISH to provide evaluation services to preschool students with disabilities.” The memo continues by stating “School districts regularly provide evaluation of school-age special education students. Similar to any other public or private agency with appropriately licensed or certified professionals, a school district may apply to the Commissioner of Education to be an approved evaluator of preschool special education students. The extra application requirement to the Commissioner is burdensome and unnecessary because school districts currently provide these evaluations for school-age students. This bill will ALLOW school districts to provide preschool evaluation services without wasting staff time in applying for a waiver


Clearly the purpose of the legislation was to relieve school districts of having to apply for permission to do evaluations for preschool students IF they WISHED to engage in this activity. There is no suggestion that school districts must do these evaluations. In fact of the 700 school districts across the state probably hundreds may not have either the capacity or the inclination to take on this responsibility. Consequently any inference that all school districts should be placed on county lists of eligible providers that is available to parents is not only incorrect from the stand point of the legislation, but worse, it will also lead to confusion among parents should they discover that such school district in fact does not render evaluations. It is tough enough for parents to navigate preschool special education decisions for their young children. It is a highly emotional and stressful time for parents. It is the statutory right and the responsibility of parents to choose an evaluator, not the school district. It would be wrong to add to their difficulties by steering parents towards school districts who may not have the capacity or the desire to do such evaluations. Moreover it will delay the entry process for parents and their children.


At a minimum, in order for a “pre-approved” school district to be placed on county Lists, such school districts should indicate that they have qualified personal, as the legislation insists, AND that they wish to engage in the work of rendering evaluations to preschool children with potential disabilities or deficits.


ACTS SUPPORTS the provision of the rule making which tracks the enabling legislation that allows school districts to engage in preschool special education evaluations for such students suspected of having special educational needs without further approval from the State Education Department, provided they have the appropriately qualified personnel.


However ACTS VIGOROUSLY OPPOSES any erroneous interpretation of the legislation as permission to place all school districts on county lists of eligible evaluators. Any such conclusion would be entirely contrary to the language of the bill and the intent of the Legislature. There can be no question that the Legislature intended their measure ONLY as a means to relieve additional administrative burdens on those districts that WISH to preform evaluations for preschool special education. It did not require those districts to either perform such evaluations or to be listed as eligible evaluators without an express indication of their desire to do so. And just as importantly it would be unfair and a waste of precious time for parents to be misdirected to school districts that may not in fact wish to perform those evaluations.


Thank you for the opportunity to comment on this important rulemaking proposal.


Steven Sanders

Executive Director 


90 State Street-suite 700

Albany New York, 12207

518 591-4659



 To:       The Department of Health/Bureau of Early Intervention


On behalf of Agencies for Children’s Therapy Services (ACTS) I want to thank the Bureau of Early Intervention (BEI) for it’s hard work in crafting this rulemaking initiative. As such I am taking the opportunity to submit comments to these recently published Revised Proposed Regulations (HLT-28-17-00009-RP), an amendment to subpart 69-4 of Title 10 NYCRR.


There are four main areas of focus for ACTS:

1)     Revised conflict of interest policy found in Section 69-4.5(a)(6) AND Section 69-4.11(a)(7)(ii)(a) AND Section 69-4.5(e)(viii)

2)     New billing requirement time frames found in Section 69-4.22(a)

3)     New evaluation/screening provisions found in Section 69-4.8 AND Section 69-4.23

4)     Eliminate billing of non-regulated insurance plans found in Section 69-4.7(g)(3)



ACTS thanks BEI for its reconsideration of the 2012 regulation that would have essentially prohibited all evaluators from also providing services to the same child. In addition, that regulation forbade service coordinators from also serving as an evaluator. The revised language repeals that prohibition dealing with service coordinators and evaluators, and it crafts new language which allows evaluators to also provide services unless the EIOD makes a finding in writing that such an assignment for services would “NOT be in the best interest of the child and family.” ACTS ENDORSES these changes and congratulates BEI for its wisdom in setting forth a policy that will protect the interest of the family as well as guarding against a possible service assignment that truly may not be an appropriate one for the child.


There was never a valid reason to question the professional integrity and objectivity of evaluators. In fact, the State has documented that about half of all evaluations do not result in any services at all. So, the underlying precept of the 2012 regulation was incorrect.  As such the proposed language found in Section 69-4.5(e)(viii) is also no longer applicable or relevant based on the changes made in the aforementioned sections and in fact can be read as contradictory to the language in Section 69-4.11. Consequently, ACTS also RECOMMENDS that language in (69-4.5(e)(viii) must be eliminated.


The revised regulation proposal works to assure that there will be an adequate reserve of qualified evaluators to provide this critical activity in the Early Intervention Program. Given the fact that the IFSP is largely predicated on the findings of the evaluation, the need for sufficient and qualified evaluators at the outset cannot be overstated.



The proposed regulations state that all claims must be submitted within 90 days of the date of service. If not, the claim will not be paid through the State escrow account, as most are. The caveat is that there may be an additional 30 days if there is a showing that the submission was delayed due to “extraordinary circumstances”. That 30-day extension would begin from the time that the provider was relieved of the impediment. ACTS URGES CAUTION AND SOME RECONSIDERATION. First of all, it should be stipulated as a given that all service providers intend to submit their claims as quickly as possible. The logic of course is the sooner that claims are submitted the sooner that reimbursement of cost may be obtained. No service provider wants a delay in their payments. The State Fiscal Agent reports that over 95% of the claims are in fact submitted within the 90 day window being proposed in these regulations. This is true in spite of the fact that currently NYEIS accepts billing up to 21 months from the date of service.


Virtually the only times in which claim submissions are late are circumstances beyond the control of the service provider. Some of these instances include: Inaccurate data and changes which need to be corrected with the participation of the County. This alone can take months and cannot be done without the involvement of the county Health Department staff. Also, a data change is often requested BEFORE the billing is first submitted into NYEIS. So, this circumstance can cause the filing clock to run out. So The Department needs to consider this dilemma before a time frame clock is instituted. There are occasionally NYEIS errors that must be identified and corrected. At times therapists submit billing information to agency providers late, or information with errors that must be corrected. ABA related billing and other claims with waivers get pended and providers must wait for counties to clear the waiver. These are but some of the reasons why a service provider may not be able to submit a claim within the initial 90-day period. And then there is the important threshold question as to when the initial 90-day submission period begins: Is it from the date of service to the first time the claim is submitted into NYEIS? OR is it from the date of service to the time that NYEIS ACCEPTS the claim and moves it into EI Billing? ACTS RECOMMENDS that the initial submission period be extended to 120 days. And ANY circumstance that delays the submission into NYEIS that is beyond the control of the service provider be deemed an “extraordinary circumstance.” Moreover, the additional time for submitting claims should be extended to 60 days from the point that the impediment is corrected. By accepting these recommendations DOH will achieve the more finite billing time frames it seeks but providers will continue to have the wherewithal to submit claims without the risk of unfairly suffering the extreme nonpayment penalty.



This is tricky. ACTS appreciates the desire of BEI to not only get the evaluations done correctly but also expeditiously with as little redundancy as possible. However, in some cases short cuts can lead to less precise evaluations and even an over prescription of services. For 25 years entry into the Early Intervention Program has been well served by its qualified evaluators and the Multi-Disciplinary Evaluation (MDE) protocol. And while it is true that some 50% of the children never need services after an MDE, the children who are recommended for services have received a comprehensive evaluation in all the domains. That evaluation is the predicate for the type, duration and frequency of services needed for that child. The IFSP is inherently dependent on that kind of rigorous examination of the needs of the particular child. Parents have come to rely on the professional judgement of these evaluations. They are not in a position to know whether an initial screening or multidisciplinary ASSESSMENT (MDA) is a reasonable substitute for an MDE. They just want their child to be evaluated and served as well as possible. And they definitely do not want their children to have their delays or disabilities overlooked or unidentified. Moreover, it is not enough to simply establish a qualification for the Early Intervention Program. It is essential to have a full and complete snap shot of that child’s service needs to help remediate their issues. Thus, relying solely on medical or “other records” for eligibility into the Early Intervention Program may be insufficient in defining all the service needs and nuances of a particular child.


By introducing the possibility of less rigorous evaluations clearly some children who do not ultimately need services will be filtered out more quickly and with less expense to government. But the worry is that other children may not receive as thorough an evaluation as is necessary. In some cases, a screening may not identify underlying issues and thus not cause an MDE to be conducted as a result. In other cases, a screening will just be an added layer of work in advance of an MDE. Counties which are always concerned with costs will undoubtedly press for less expensive evaluation options. But the flip side of that coin is that the IFSP team which is empowered and entrusted with developing a service plan, without more specific information about a child’s deficits, may opt for MORE services than may otherwise be identified in a more thorough MDE to ensure that the child’s needs have not been overlooked. Ironically this could actually lead to greater cost not less.


In some situations, the use of screening may increase the cost and time consumed by the evaluation process. When a screening leads to a full MDE the provider will be paid for both the screening as well as the MDE, the cost of which is borne by both the county and the state. And where a screening concludes (either correctly or incorrectly) that no further MDE is needed, the cost for the screening is still substantial. And, of course, the parent can still request a full MDE, which in many instances may well be the outcome. When multiple assessments are done it could impinge and exceed the time line compliance that have been established at the local or federal level for evaluations to be completed from the point of referral to the Early Intervention Program.  ACTS believes that there will likely be both an INCREASE in the aggregate cost for evaluations as well as time that is consumed, coupled by the added jeopardy that some children may not be adequately evaluated as eligible for the Early Intervention Program when only a screening is conducted. ACTS believes that these are all very real risks. And these unintended consequences should give DOH pause. Moreover, we believe that It is not sufficient nor satisfactory to simply delegate to parents the decision whether a MDE will be conducted.  At a minimum there must be a corresponding requirement that ALL the evaluation options are first explained to the parent. If the decision is made NOT to conduct an MDE (with the understanding that a request can always be made later), the parent should sign a statement that they have been fully informed as to their evaluation options.


Although we understand the arguments articulated by DOH for less rigorous evaluation options, nonetheless ACTS DOES NOT AGREE that there is sufficient justification or value for weakening the evaluation process and substituting less rigorous evaluations in place of an MDE. As such the status quo regarding the rendering of MDE’s should be maintained. No system is ever perfect and there are always instances in specific cases where an argument can be made that a different kind of evaluation may have been more appropriate. However, the MDE protocol which has been utilized for over two decades has served us well. But if an assessment (MDA) or other partial evaluation is to be substituted, then it should only be done with the full knowledge by the parent of the options and their rights. We advocate erring on the side of caution and always with what is in the best interest of the child.



This policy proposal is entirely welcome and will save time and money for providers. Most, if not all, non-regulated insurance plans impose annual or lifetime limits. AS such ACTS ENDORSES this proposal. The overall rate of rejection rate by all of commercial insurance from E.I. claims is about 84% annually. For Non-Regulated Plans that number jumps to nearly 100%. Billing all commercial insurance for E.I. services only generates about 2% of the overall reimbursement from the approximately $660M annual reimbursement. A strong argument is made that for such a miniscule rate of return… the work and expense by providers involved with billing, and then following up with commercial insurance in order to realize so little return, that an end to commercial billing altogether in favor of a “Covered Lives” approach is vastly preferable. However, there can be virtually no argument against ending billing to non-regulated plans and especially those that have annual or lifetime limits which is common. It is empirically clear from twenty-five years of experience that non-regulated commercial insurance in most instances will reject paying for E.I. service costs. So, the DOH proposal to terminate billing of most non-regulated insurance plans and direct those claims to escrow, absent some other government insurance program that may reimburse, is certainly the correct policy decision.


Once again, on behalf of the Board of Directors and members of ACTS, I thank you for your consideration of these observations and recommendations.


Sincerely, Steven Sanders

Executive Director-ACTS

August 22, 2018

MEMO IN SUPPORT A.9507-B from Agencies for Children’s Therapy Services

 March 13, 2018 


Agencies for Children’s Therapy Services (ACTS) represents Early Intervention agencies from around the State and whose providers perform a majority of the Early Intervention evaluations and services. ACTS STRONGLY SUPPORTS The Assembly Budget bill, A.9507-B as it relates to the provisions impacting the Early Intervention Program.


The Assembly rightfully rejects proposals made by the Executive which would have made less rigorous the evaluation process of thousands of children at risk each year. And the Assembly rightfully rejects proposals which would add an enormous and costly new layer of bureaucracy to the billing process by requiring that every denied claim be appealed before a provider could be reimbursed. Such a new administrative burden would delay payments to already financially strapped providers by additional months and likely not result in any tangible savings to the state or counties.


Instead the Assembly smartly seeks to eliminate the fruitless billing of commercial insurance and replace it with a “Covered Lives assessment”. Currently commercial insurance companies reject about 83% of all claims submitted to it and their reimbursement only totals 2% of the overall Early Intervention payments. This rate of denial of claims has existed for the entirety of the 25 year Early Intervention program. Covered Lives would save the state and counties millions of dollars in payments each year that they ought not have to make and would save providers enormous time and expense from the futile billing process of commercial insurance.


A.9507-B also recognizes that Early Intervention providers of home services have had no increase of any kind in over 15 years and thereby keeps the Governor’s proposed 2% rate increase.


ACTS congratulates the Assembly leadership and recognizes the work done by Assemblyman Gottfried and Assemblyman Cahill in crafting these important policy recommendations. We urge the Senate to join with the Assembly in supporting these critical measures.


Steven Sanders, Executive Director

90 State Street, Suite 700, Albany, NY 12207, TEL: 518-591-4659 FAX: 518-694-0527

 March 13, 2018





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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