Public Comments in Response to NYSDOH Revised Regulations for the Early Intervention Program – HLT-39-22-00020-RP

November 27, 2023 | ACTS in Albany

Public Comments from Agencies for Children’s Therapy Services in Response to NYSDOH Notice of Revised Regulations for the Early Intervention Program – HLT-39-22-00020-RP

Agencies for Children’s Therapy Services (ACTS) is an association of 31 agencies providing Early Intervention, Pre-K, Special Education, and School Age Special Education services. Member agencies collectively serve over 25,000 infants, toddlers, and preschoolers in all five boroughs of New York City, as well as Nassau, Suffolk, Westchester, Rockland, the Mid-Hudson Region, the Capital District, and the North Country.

ACTS submits the following comments in response to the most recent Notice of Revised Rulemaking published in the October 11, 2023, edition of the New York State Register.

Applied Behavior Analysis (ABA)

The New York State Department of Health (NYSDOH) proposes numerous revisions to Subdivision (c) of sec􀆟on 69-4.30 relating to the reimbursement for early intervention program services including removing references to ABA aides from Section 69-4.30(c)(13). In addition, NYSDOH proposes to amend 69-4.30(c)(13) to require ABA services to be billed as either basic or extended visits in accordance with the hours authorized in a child’s IFSP. These proposed amendments are not problematic except that in pp. 56-57 of its Assessment of Public Comment, NYSDOH makes a statement in response to a comment that appears to be incorrect.

NYSDOH states that “Billing of back-to-back basic or back-to-back extended visits furnished by the same therapist to the same child is prohibited.”

However, children with an autism spectrum disorder often receive 20 or more hours of ABA services per week, many of which are delivered by the same therapist, consistent with the NYSDOH’s own Clinical Practice Guidelines for Autism/Pervasive Development Disorders. These Clinical Practice Guidelines were first issued by NYSDOH in 1999, and then reaffirmed in 2017, following nearly two decades of peer reviewed research on ABA. It is critical to allow providers to continue to be appropriately reimbursed for such ABA sessions. ACTS requests that NYSDOH clarify in its Assessment of Public Comments that back-to-back extended visits by the same therapist delivering ABA to the same child are an appropriate method of reimbursement.

Group Early Intervention Services

NYSDOH proposes several changes to the delivery of group developmental services to children in the program. These proposals include eliminating the “basic” and “enhanced” service construct, reducing the maximum group size from 12 to 10, prohibiting therapists from “pushing in” to a group to see an individual child and “pulling” children out of the group for an individual service. Collectively, these proposed changes threaten the continued viability of this important, and under-utilized service delivery model. Furthermore, these proposed changes are ill-timed given the worsening provider capacity in the program and concerning wait lists for children as documented by the February 2022 report of an audit by the NYS Office of the State Comptroller.

ACTS urges the NYSDOH to:

  • establish a reimbursement rate for the new, proposed “early intervention group service” that is at least equivalent to the current reimbursement rate for “enhanced group;”
  • consider a revision to the method of reimbursement of groups that is not atendance-based as agencies incur the same cost for each group session regardless of the percentage of children who atend on any given day; and
  • assure that the effective date for any changes to regulations for group services is at least six months after publication of the Notice of Adoption as municipalities, provider agencies and families need ample time to make changes to existing groups and amendments to Individualized Family Service Plans so that there is no detrimental impact to current children in the program.

School Psychologists

NYSDOH proposes the removal of School Psychologists from the definition of qualified professionals at 69-4.1(al)(16)-(24). ACTS appreciates NYSDOH’s decision to allow the continued participation of school psychologists in the EIP to align with amendments to NYS Education Law that extended their authorization through the end of June 2024. School psychologists have been qualified personnel in the EI program for many years and some of these providers have been active in the program for this same time. ACTS requests that NYSDOH grandfather any school psychologists who are already approved as of June 2024, given continued concerning wait lists for children in the program.

Reduction in Minimum Experience – Qualified Personnel

NYSDOH proposes to reduce the minimum amount of experience delivering services to young children for individual providers to be approved in the program from 1,600 to 1,000 hours. ACTS continues to support this proposal as an essential strategy for helping to recruit new workforce to the program. The NYSDOH has a robust set of required training for EI providers and quality assurance requirements for EI provider agencies and may need to consider a further reduction in the required number of hours, if the concerning wait lists for children in the program continues.