Public Comment to Proposed Department of Health Regulations I.D. No. HLT-04-20-00003-RP

July 9, 2021 | ACTS in Albany

Submitted by ACTS July 9, 2021

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

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

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

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

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

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

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


Steven Sanders
Executive Director-ACTS