ACTS Public Comment On Proposed Regulations

August 22, 2018 | ACTS in Albany

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.

There are four main areas of focus for ACTS:

  1. Revised conflict of interest policy found in Section 69-4.5(a)(6) AND Section 69-4.11(a)(7)(ii)(a) AND Section 69-4.5(e)(viii)
  2. New billing requirement time frames found in Section 69-4.22(a)
  3. New evaluation/screening provisions found in Section 69-4.8 AND Section 69-4.23
  4. Eliminate billing of non-regulated insurance plans found in Section 69-4.7(g)(3)


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

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 As such the proposed language found in Section 69-4.5(e)(viii) is also no longer applicable or relevant based on the changes made in the aforementioned sections and in fact can be read as contradictory to the language in Section 69-4.11.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

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


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

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


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

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

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

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


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

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

Sincerely, Steven Sanders
Executive Director-ACTS
August 22, 2018