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ACTS Response to Department of Health Regulation Changes:

Katherine Ceroalo, Counsel

NYS Department of Health

Regulatory Affairs

Room 2438

Empire State Plaza

Albany, NY 12237


Dear Ms. Ceroalo,


I am the Executive Director of ACTS (Agencies for Children’s Therapy Services). Our organization comprises over two dozen service providers of Early Intervention and preschool special education programs. ACTS is the largest provider organization of Early Intervention services in the downstate region of the State from Orange County and south.


I am writing to provide comments and recommendations to the proposed rule published by the Department of Health, (DOH), on September 5, 2012 regarding the delivery of Early Intervention (EI) services and specifically the DOH proposed changes in evaluations, service coordination, and services… (HLT-36-12-00010-P).




DOH Published proposed regulations on September 5, 2012 which were previously submitted by the Governor to the State Legislature for its approval in the 2012-13 State budget. After many weeks of careful consideration the Legislature CHOSE to reject these recommendations by deleting the aforementioned proposals from their final (and enacted) budget bills on March 30, 2012. The act of submitting these proposals to the Legislature by the Governor was not done as a courtesy to the State Assembly and the State Senate, but rather because the Governor recognized that such changes in policy are required by law as it relates to the practice of evaluators, service coordinators and service providers. The legislative process is the correct venue for proposing and adopting such changes in law and that is why the Governor made those recommendations to the Legislature.


When enacting the original Early Intervention law some 20 years ago, the Legislature provided great specificity in detailing a statutory framework for the provision of Early Intervention (EI) services. The proposed regulation would appear to ignore completely the statutory and regulatory schemes applicable to professional licensing and established by the Legislature and the State Education Department (SED). Indeed, Title VII of the Education Law together with its implementing regulations and Regents Rules sets forth the laws and rules governing New York State’s 49 professional license areas, which comprise some 800,000 licensed professionals and 30,000 professional corporate practice entities, some of which this proposed regulation directly affects. It is the Board of Regents through SED and the Boards of Professions appointed by the Regents, not the DOH, that have jurisdiction and oversight of professional licenses and professionally structured business corporations. It is through the purview of SED and its regulatory oversight that monitors and protects against improper practices including possible conflict of interest issues. Furthermore as recently as 2011, SED and the Legislature enacted a law and new rules governing the corporate practices of companies incorporated and approved to provide EI services (Chapter 581 of the Laws of 2011). In that legislation SED and the Legislature reaffirmed the long standing practice of an agency entitled to provide BOTH evaluations and services.


The DOH’s proposed regulations go far beyond implementing the original EI legislation and ignore the 2011 amendments to the corporate practice laws. Instead it purports to usurp legislative powers and SED administrative purview by making new policy in contravention of the separation of powers doctrine. Under said doctrine, state agencies MAY NOT make policy in the guise of administrative rule making. See Boreali v. Axelrod, 523 N.Y.S.2d 464, 466, 469 (1987). As in Boreali, which overturned the Public Health Council in its attempt to legislate “beyond the boundaries of its lawfully delegated authority…”, here again the DOH has not merely “filled in the details of broad legislation describing overall policies to be implemented,” but has instead “created its own comprehensive set of rules without the benefit of legislative guidance.” This sentiment is reaffirmed Id. at 470; see also Doe v. Axelrod, 527 N.Y.S. 2nd 385, 390 (1st Dep’t 1998) enjoining proposed regulations by which the “Commissioner acted in excess of his powers”.


The entire premise of these proposed regulations is to “eliminate conflicts of interest” in the evaluations, service coordination and service delivery of Early Intervention to toddlers. The DOH makes absolutely no showing of instances (to their knowledge) where there are specific examples of conflicts of interest tainting the process of evaluations, service coordination and services. Instead the DOH cites the incidence of numbers where the Evaluators have a connection to the Service Providers especially in New York City and higher utilization and costs in that region. However those statistics do not include the number of evaluations that determine the child to be ineligible for EI services thereby resulting in no need for services, rendering those statistics invalid. Nor does it analyze why certain services are assigned to certain providers, or why certain costs in certain parts of the state tend to be higher.


Moreover the “conflict of interest” premise fails to recognize that the assignment of services or a Service Provider is not in the purview of the Evaluator and in fact is expressly forbidden (10 NYCRR 69-4.8(a)(9) iii) , as is any recommendation by the evaluator for type and frequency of services. That authority by law falls under the responsibility of the Individualized Family Service Plan (IFSP) team and the Early Intervention Official (EIO/D) who approves and arranges for a provider of services, all done with input by the parents or guardians. In addition, the Initial Service Coordinator (and not the Evaluator) works with the parents or guardians to decide and determine the actual providers.


The proposed regulation also observes that costs are higher in New York City where the incidence of Evaluator and Service Provider being from the same agency is also higher than in the rest of the State. This statement of course belies the fact that virtually all costs of doing business in the downstate area, and particularly in New York City, are higher than the state average costs for all businesses. This is borne out by the higher cost of living index in the New York City metropolitan area as regularly reported by the United States Bureau of Labors Statistics.


As for “potential” conflicts of interest in the EI process, the enacted EI law expressly addressed this point  by prohibiting (as noted above) an evaluation from including a reference to any specific provider of EI services as indicated in N.Y. Pub. Health Law section 2544(5). This provision shows that the Legislature had plainly considered and expressly addressed potential conflicts of interest in connection with the provision of EI services. And when asked by the Governor in the budget process of this year to go further, the Legislature demurred.


Furthermore there is no provision of the EI legislation or program, nor does the DOH cite one, that delegates any authority to the DOH to further regulate “potential” conflicts of interest between Evaluators and Service Providers especially when clearly none exists based on the separation of functions that was part of the original legislation.


There are a raft of legal precedents and case law supporting the Legislature’s primacy in the area of establishing policy law and preventing an administrative agency from usurping the legislative prerogatives.   See Ellicott Group, LLC v. State of N.Y. Exec. Dep’t office of General Servs., 922 N.Y.S.2d 894 (4th Dep’t 2011); Under 21 v. City of New York, 65 N.Y.2d 344, 359 (1985); Broidrick v. Lindsay, 385 N.Y.S.2d 265, 267 (1976); Rapp v. Carey, 404 N.Y.S.2d 157, 163 (1978)


The procedure to obtain “authorization” for an Evaluator to act as Service Provider in the proposed regulations, notwithstanding the proposed regulation generally prohibiting such a practice, further underscores that the DOH has impermissibly transgressed its administrative function with these proposed regulations. As cited in Boreali, 523 N.Y.S.2d at 469-70 in that case, “to the extent that the agency has built a regulatory scheme on its own conclusions about the appropriate balance of trade-offs…it was acting “solely on its own ideas of sound public policy and was therefore operating outside of its proper sphere of authority.”


Nor can the proposed regulations be justified on the ground that the DOH’s proposals are based on any special expertise, technical competence or information. Indeed the DOH does not cite ANY evidence in support of its proposed regulations other than a single statistic about the incidence of agency Evaluators and Service Providers serving the same child in New York City which is not a reliable statistic based on its incompleteness as mentioned above. In fact, the justification merely states that allowing an Evaluator to also later provide services to a child “may impact the results of the evaluation,” DEVOID of any facts or any other reliable basis for this speculation. This action without any other substantive basis by a government agency is viewed dimly in Boreali, 523 N.Y.S.2d at 471.


In sum…the DOH is incorrect in its premise that there exists “conflicts of interest” between an Evaluator and the Service provider, and as importantly does not possess the legislative authority needed to issue these regulations. The DOH is proceeding recklessly with proposed regulations which are illogical and unreasonable and not supported by the facts.




On September 6, 2012 one day following the publication of the proposed regulations, DOH presented, for the first time, its proposals to the State Early Intervention Coordinating Council (SEICC). The SEICC is a legally constituted and federally required, (see IDEA), entity of diverse members appointed by the Governor, some of whom are nominated by the Legislature. Their purpose is to advise the DOH on important matters impacting EI and to vet any potential new rule or regulation in accordance with section 2553 of the Public Health Law.


At the September 6 meeting of the SEICC, there was expressed nearly unanimous disapproval of the proposed regulations. The discussion was thorough and lengthy occupying several hours of the meeting. At the conclusion of the discussion a resolution was passed with a majority of the SEICC members voting to ask the DOH to “withdraw” it proposed regulations and instead to promulgate different regulations that focused on enforcement of the current laws overseeing the EI process. Furthermore the resolution asked that this “alternative” resolution be published.


Public Health Law 2553(4) in part states that “The Commissioner shall not act in a manner inconsistent with the recommendations of the Council (SEICC) without first providing the reasons thereto. The Council, upon a majority vote of its members, may require that an alternative approach to the proposed rules and regulations be published WITH a notice of the proposed rules and regulations pursuant to section 202 of the State Administrative Procedures Act.”


The DOH has failed to neither withdraw its proposed regulation as asked for by the SEICC nor has it published the SEICC alternative together with the DOH proposed regulation in a revised proposed regulation for public comment. This failure would seem to constitute a clear and flagrant disregard for the process of rule-making as expressly iterated in section 2553 of the Public Health Law. In so doing it would be disenfranchising the SEICC from it legal rights and depriving the public of commenting on the views expressed within the alternative resolution as envisioned by statute.


The DOH should heed the near unanimous opinions expressed by the SEICC and WITHDRAW the pending proposed resolution. At a minimum the DOH must revise its proposed resolution and resubmit it together with the SEICC alternative proposal as required by law and allow the public an opportunity to comment on both. 




The DOH’s proposed regulations provide that on and after December 1, 2012, individuals cannot serve as both Evaluators and Service Coordinators. Nor would Evaluators be able to provide services to the clients they evaluate. Both Evaluators and Service Coordinators are approved professionals who have met rigorous criteria to obtain their license or approval. See e.g., N.Y. Comp. Code R. & Regs. Tit 10, sections 69-4.4, 69-4.5. These professionals have legal rights, and Evaluators have a well-established property interest in their license. See, e.g., Augat v. Dowling 613 N.Y.S.2d 527, 531, 161 Misc. 2d 225, 233 (Sup. Ct., Albany Cnty.1994). In that decision the court held that such professionals “have a constitutionally protected interest in their licenses entitling them to notice and a hearing before such licenses are revoked or denied.” In the case of O’Brien v. O’Brien 66 NY 2d 576, 586, 498 NYS 2d 743, 748 (NY 1985), the New York Court of Appeals ruled that a “professional license is a valuable property right reflected in the money, effort, and lost opportunity for employment expended in its acquisition, and also in the enhanced earning capacity it affords its holder, which MAY NOT be revoked without due process of law.”


By requiring licensed professional Evaluators and approved Service Coordinators to choose which of these services they may continue to provide, or by preventing licensed Evaluators from serving clients they evaluate, the DOH is effectively revoking these professionals of one of their licenses, (in the case of an Evaluator), in contravention of the law and suspending their guarantee of due process. And of great significance the NYS Court of Appeals held that “decisions involving licenses…require a balancing of differing interests, a task the multimember, representative Legislature is entrusted to perform under our constitutional structure”- Saratoga Cty Chamber of Commerce v. Pataki 100 N.Y. 2d 801, 823 (2003).


The Courts have repeatedly held that due process requires that the DOH afford not only the opportunity to be heard prior to revoking an individual’s license, but also that as a matter of substantive due process, any revocation of such property interest must be rationally related to a state interest. The DOH has not met the standard here. It has not provided any basis, rational or otherwise for revoking a license held by individuals approved and licensed as an Evaluator but who elects to be a Service Coordinator…other than idle conjecture.


In its “Regulators Impact Statement” the DOH states that the proposals will “prohibit conflicts of interest that may impact the results of the evaluation.” In making this stunning assertion, defending the revocation of a license, the DOH has not relied upon any facts to support this conclusion. It is entirely speculative. And under New York State law it is firmly established that “speculation and conjecture…do not constitute a rational basis” to revoke or deny a license. In fact in the case of Ha Ha Ha, Inc. v. N.Y. State Liquor Auth., 262 A.D.2d 1008, 692, N.Y.S.2d 565 (4th Dep’t 1999) and Augat, 613 N.Y.S.2d at 530-31, the courts opined that denying a license that is “without foundation of fact” is invalid and “arbitrary and capricious.”


A licensed professional enjoys a constitutional property right in their license that cannot be deprived by regulation absent a clear and compelling legitimate government interest. ACTS agrees with the numerous Court holdings that such a proposed regulation as this would be an unconstitutional deprivation of the property rights that attach to an individual therapist through the procurement of his or her license to practice a given profession. Further still, if adopted this proposed regulation would be in direct opposition with Title VII of the Education Law, since it is the Education Law that establishes and defines the professional licenses and in so doing prescribes the scope of each one. Clearly the proposed regulation is contrary to the intent of both SED and the Legislature.


The matter of revoking professional licenses is serious and reserved for very special circumstances. The constitution and the courts have made this abundantly clear. Without legislative authorization, an agency of government is not entitled to take such action, or present such a “Hobson’s choice” to approved and licensed professionals without cause and due process. The proposed regulations fail ALL those tests. 




The role of the parent or guardian and their involvement in the process of EI services is critical. It was always envisioned by IDEA and the State law to be an indispensable part of the program. After all it is THEIR children and their children’s very future which is at stake. The EI program in fact is centered on the notion that parents or guardians are an essential stakeholder and advocate for their children. The goal is to maximize family participation whenever possible.


These proposed regulations would move the process in exactly the opposite direction. New York State law gives parents or guardians the unfettered right to select an Evaluator and an ongoing Service Coordinator to delineate and then deal with their children’s possible disabilities or delays in development. It is expected that as necessary advocates for their children, parents or guardians will make a selection for Evaluator based on the person or company that they believe offers the best and most compatible fit for their child’s particular challenge.


If the experience with the Evaluator is a positive one it should not be surprising that the parent or guardian will want to continue that relationship. It would in fact be irresponsible for a parent or guardian to make a different decision. The reason why the parent or guardian selected a particular Evaluator to begin with may hinge on any number of very personal factors unique to that child or the family including cultural matters, proximity, specialty, or even just a sense of confidence which is so important in any treatment, medical, or quasi medical relationship. Imagine a parent going to a doctor to have their child diagnosed for some medical problem and then being told that because the particular doctor did the diagnosis, that physician may not provide the necessary treatment for fear that the diagnosis was trumped up for personal financial gain. That would be a preposterous and nonsensical scenario, yet that is precisely what the DOH is proposing for EI.


The notion that a close relationship with the family and an in depth understanding of the child’s needs through the evaluation is a bad thing and will somehow result in falsified assessments and higher cost services is simply without any basis in fact. It is an offensive charge without any foundation or even any logic. It is a speculative indictment of hundreds of hard working and honest professionals. In fact, one could more easily arrive at the conclusion that the high incidence in Evaluators and Service Providers is a strong indication of parental (guardian) satisfaction and customer approval of the work being done both by the Evaluator and the Service Provider. It is folly to change a service team that parents or guardians are satisfied with, and it is contrary to what their important role in this process was always intended to be.


Moreover the provision in the proposed regulations which is purportedly intended to account for circumstances where the Service Provider and Evaluator may need to be one and the same is cumbersome and time consuming. It requires a “clear showing” to the Commissioner of “special and extraordinary circumstances” or “lack of availability” of other qualified providers. Such a waiver process would in most cases negate the rights of a parent to have the provider that they have a personal comfort level with. Nobody should expect that such a waiver would be granted or even attempted very often.


But by pursuing this highly suspect, flawed and irrational policy the DOH is unwittingly abridging the statutory rights of the parent or guardian. The irony is that by selecting the Evaluator of their choice, the parent or guardian would be eliminating the very person or Service Provider that may well be the parent’s preferred choice and importantly the best fit for the child. The notion that the parent or guardian will just blithely accept an evaluation that either results in too much service or too few services is an insult to parents and guardians and a disenfranchisement of their legal and critical role in the health and education of their children.


These proposed regulations cause the rights of parents or guardians to be nullified with no benefit to the family, government, or expenditures in the budget.




The DOH claims as part of it Regulatory Impact Statement that prohibiting Evaluators from acting as Service Providers “will reduce inappropriate service utilization and can be expected to result in an ‘undefined’ level of savings for the program.” However there is no stated basis upon which the DOH believes that implementing the contemplated prohibition would “reduce inappropriate service utilization.” The DOH provides no basis for this conclusion because it has none. There are no studies or analyses that would support this conclusion. It is merely an assumption, wholly unsubstantiated, that has led to this proposed policy change. By the DOH’s own admission the purported savings are “undefined.”


The “Needs and Benefits” subsection of the proposed regulation is fatally flawed and unsubstantiated by facts. It cites a statistic of 90% incidence of Evaluator and Service Provider in New York City and a higher than state average cost in utilization in that same region. As was discussed earlier in this response, that statistic does not account for the number of evaluations that do not even result in any services whatsoever which would result in a far lower percentage. In fact it is believed that between 45% -50% of all evaluations in New York City result in no services.


And the utilization costs in New York City and the downstate region are necessarily higher reflecting the overall higher cost of living and doing business. This is reflected in all aspects of business and commerce in that region of New York State.


This section of the proposed regulations, none the less, takes those two supposed “facts” as the predicate for its erroneous conclusions that the relationship between the Evaluator and the Service Provider can lead to “inappropriate provision of services” resulting in higher costs for taxpayers. In other words, the equation that the DOH employs takes one false assumption and adds a second false assumption, the sum of which becomes a totally false and inaccurate product… which are these proposed regulations.


None of what is contained in the “Needs and Benefits” subsection is substantiated by any facts or hard data. And it forms the entire predicate for these proposed regulations! In fact when referring to “conflict of interest” the DOH proposed regulations cite no actual examples but rather repeatedly refer to them as “potential” conflicts of interest.


In New York City there are an array of diverse and varied demographic groups with their respective language and cultural differences seeking EI services, as well as geographic and transportation issues which are involved in selecting the proper evaluator in many instances. It is therefore reasonable, and no way nefarious as implied by this subsection, that parents who find themselves in the new and trying circumstance of obtaining proper services for their infant or toddler child would be impelled to prefer a Service Provider with whom they may have already formed a positive relationship, if the evaluation was satisfactory. Moreover there is absolutely no empirical evidence cited by the DOH for the insinuation that the utilization levels (and costs) are higher in New York City than the rest of the state because Evaluators are not doing objective assessments.


But nonetheless, in this subsection the DOH persists by saying “one factor that ‘potentially’ contributes to the difference in utilization levels is the ‘conflict of interest’ created when agencies and their staff or contractors responsible for conducting evaluations to determine eligibility for services could ‘potentially’ render services in children’s IFSP.” This is hardly a compelling reason to create such upheaval in the EI delivery system based on these hypothetical and “Potential” situations.  It simply defies logic and reason to assume that licensed professionals in any tangible numbers would risk their livelihoods or even their liberty by falsely claiming that a child is eligible for EI services especially when that Evaluator may not determine who the Service Provider will actually be and does not know.


With regard to costs, the DOH fails to take into consideration the fact that the Commissioner sets the amount of reimbursement for EI services and NOT the Evaluator or Service Provider (10 NYCRR 69-4.30(a). Certain rates are also different depending on the region of the State, and correctly so.


If the DOH has evidence that any approved Evaluator, Service Coordinator or Service Provider is involved in non-objective or false and erroneous evaluations, the DOH certainly has the power to investigate and punish any such individual or entity pursuing such conduct…and they should.  This authority is contained in section 2557(3) of the Public Health Law. The DOH may conduct audits, site visits. They may withhold reimbursement if they find wrongdoing and can revoke the license or approval of a person or persons who are engaged in fraudulent acts. Such individuals can also be referred to the appropriate District Attorney for criminal prosecution.


The job Impact Statement lacks credibility. It states that “the Proposed rule will have minimal or no impact on jobs.” This subsection goes on to state that “there will be no impact (in) the overall participation of individual providers in the Early Intervention program” based on the proposed rule prohibiting an individual from being approved as both an Evaluator and a Service Coordinator or by separating Evaluators from Service Providers.


These two statements are astounding considering the fact that the DOH has done no study or even a survey to determine how the role of Evaluator will be affected once the Service Provider or agency with whom they work cannot do services for children who they may have evaluated or having paid for such evaluation. If a Service Provider is faced with the choice of doing evaluations or contracting with independent evaluators for evaluations…OR providing services, they will inevitably choose providing services.


The arithmetic is straight forward. The more evaluations that an agency does or contracts for, the fewer services that agency may provide. The math is inescapable and the result is predictable. There will be far fewer Evaluators and as a result much greater difficulty for parents or guardians to acquire those necessary evaluations and services. Worse still, the reduced availability of Evaluators will lengthen the time necessary to complete those evaluations.


As for the prohibition on a single person being approved to provide both evaluation and service coordination, since these persons would be required to give up one or the other job, it is logical to arrive at the conclusion that there will be fewer persons doing one or the other task or both. This is certainly an impact, a major impact, on jobs contrary to the assertions in the Job Impact Statement. Should this eventuate then there most certainly would be an impact on local governments which would be compelled to fill the breach should there be a shortage of Evaluators and/or Service Coordinators. Otherwise some children would not have access to evaluations or service coordination contrary to IDEA and State law. This then WOULD become a mandate on local governments contrary to the statement in the proposed regulation that the “proposed rule does not impose any new duty upon any county” etc.


In sum, were this regulation to be adopted there will likely be greater delays in the delivery of treatment services especially in regions of the State where there may be a shortage of Providers. Many Counties have limited resources in terms of Evaluators and Service Providers. The waiver process will not be the answer. It will simply add another layer of paperwork and time to an already cumbersome system laden with too many delays.





ACTS does not take lightly the possibility of malfeasance within the EI world, or any industry for that matter. We believe that prudent and proportionate steps ought to be initiated to deter, or if needed to punish those who might adulterate or distort the EI process in any way. We note that there is no evidence presented by the DOH that such practices actually occur on any discernible basis, but even one case of inappropriate behavior is one case too many.


ACTS believes that the recommendation in the proposed regulations in section 69-4.50(e)(i),(ii),(iii) should be adopted as proposed by DOH. The other changes as proposed in the regulation should be withdrawn as iterated by the SEICC on September 6, 2012.


We also believe that the following recommendations should form the basis of a revised regulation:

a)      If services are to be provided at the direction of the IFSP team and the Early Intervention Official (EIO/D) by a company affiliated with the Evaluator or who paid for the evaluation, then such relationship must be disclosed to the parent or guardian and the parent or guardian must consent

b)     The EIO/D may not also be the Service Coordinator for the same child.

c)     Should any professional practicing in the EI program be found to have engaged in willful acts leading to false evaluations or inappropriate services, such person will be liable for the forfeiture of their license or licenses and be subject to a possible misdemeanor prosecution.

d)     Provide greater training and oversight for EIO/D’s and Service Coordinators to ensure the appropriate IFSP and subsequent services. Also periodic reviews of the Evaluators assessments should be undertaken!




The Department of Health presented a set of proposed regulation changes on September 5, 2012. They may have been well intentioned, but they fail to be valid on many counts.  There are substantial reasons to believe that the policy changes that the proposed regulations would occasion if adopted is beyond the administrative jurisdiction of this state agency. Moreover the manner in which the Department has handled the SEICC alternative resolution calls into question the propriety of the entire rule making process in this instance.


As for the substance of the changes, to put it quite succinctly, they are reckless and based on assumptions that have no foundation. If adopted they would cause parents and guardians to lose important rights; cause licensed professionals to lose their constitutionally guaranteed rights to practice in the license that they have worked for and have been approved; cause a loss of Evaluators and other professional persons involved in the delivery of Early Intervention services; cause services to be provided by entities not necessarily the best fit for the child; and cause a lack of access to certain services because of the loss of qualified professionals from various disciplines.


These proposed regulations would also establish the unsupported and irresponsible notion that a professional who evaluates or diagnoses an individual is disqualified from treating that individual because of the temptation to create a false diagnosis or false evaluation for personal gain. Propagating this totally unproven notion as “fact” would represent a gross indictment of honest professionals across the spectrum, not limited to EI.


For all these reasons DOH should heed the recommendations of the State Early Intervention Coordinating Council and the many other professional organizations and advocacy groups for children and withdraw these proposed regulations in favor of measures that are more appropriate to enforcement, and training…and punishment when needed.


ACTS appreciates the opportunity to have commented on these proposed regulations and as always stands ready to work with the fine men and women of the Department, and particularly the Bureau of Early Intervention, to improve the delivery of critically needed services to infants and toddlers.




Steven Sanders

Executive Director-ACTS

Submitted October 22, 2012



Click here to download pdf of ACTS Response to DOH Proposed Changes 10-22-2012

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