COMMENT TO SED REGARDING PROPOSED RULEMAKING, EDU-40-18-00009-P
November 26, 2018, Submitted
by AGENCIES FOR CHILDREN’S THERAPY SERVICES (ACTS)
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
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.
New York, 12207
ACTS PUBLIC COMMENT ON PROPOSED REGULATIONS - August 22, 2018
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.
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)
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
billing of non-regulated insurance plans found in Section 69-4.7(g)(3)
· REVISED CONFLICT
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.
· NEW BILLING REQUIREMENT TIME FRAMES
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
NEW EVALUATIONS AND SCREENINGS
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.
MOST BILLING OF NON-REGULATED INSURANCE PLANS
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
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
MEMO IN SUPPORT A.9507-B from Agencies for Children’s Therapy Services
March 13, 2018
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
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
Testimony to Joint Legislative Budget Hearing Health & Medicaid - February 12, 2018
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
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
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.
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.
Executive Director-- ACTS
TESTIMONY BY AGENCIES FOR CHILDREN’S THERAPY SERVICES (ACTS)… REGARDING EARLY INTERVENTION PROPOSED
Executive Director Steven Sanders
August 17, 2017
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.
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.
ACTS TESTIFIES at JOINT LEGISLATIVE BUDGET HEARING in ALBANY - HEALTH and MEDICAID
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
2016 BUDGET UPDATE
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
COMPLIANCE WITH THE LAW
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
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.
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.
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
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.
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.
Director - ACTS
STATE SUPREME COURT RULING IN
FAVOR OF 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
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.
NY STATE BUDGET OUTCOMES - April
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
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.
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
ACTS TESTIFIES at HEALTH COMMITTEE BUDGET HEARING IN ALBANY CONCERNING EDUCATION
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:
DeFrancisco, Chairman Farrell, Chairman Hannon, Chairman Gottfried and Members of this Joint Budget Committee
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
ACTS TESTIFIES at LEGISLATIVE BUDGET HEARING IN ALBANY
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
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
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.
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”
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.
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
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.
ACTS TESTIFIES at PUBLIC HEARING
IN ALBANY FOR NEEDED E.I. BILLING CHANGES
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
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
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.
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.
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.
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
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
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.
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:
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.
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.
information is required to be provided through NYEIS should be considered sufficient for insurance adjudication.
and Service Coordinators must be reimbursed for their new administrative tasks and expenses.
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.