Wednesday, February 16, 2011

Dismantling the Early Intervention and Special Education Program through back door Medicaid regulation

I have recently blogged about the State Plan Amendment that involved a $540 million settlement paid from NY State to the federal government because of Medicaid fraud. In the wake of the settlement, the Office of the Medicaid Inspector General has developed guidelines that municipalities are trying to understand, and in turn these guidelines are trying to be followed by local school districts and providers.

The current street level problem is that documentation requirements for services are being applied retroactively - and that causes even greater amounts of ineligible billing. In a mad rush to understand and comply with new requirements (I am hesitant to call them rules or guidelines) the locals are desperately looking for guidance on how they are supposed to provide services, document services, and bill for services.

Inspired people (like me) went to more than one training session and were shocked to find out that there were inconsistencies between the information that was presented at the trainings. The NYS Education department responded to the confusion by publishing two Q&A documents that attempt to clarify the training that every service provider in the state had to attend. The Q&As are the only official documents outside of the handouts provided at the mandated training.

Questions still persist because the requirements are confusing. Unfortunately, OMIG is no longer answering questions and is referring everything over to State Ed. I am not sure who is in charge of answering questions at State Ed but some rather odd information is being fed out of that department. One thorny issue had to do with what supporting documentation was needed for OTA supervision.

The State, as a de facto third party payor, has the right to require whatever they want to require - much as private insurance companies or worker's comp, or Medicare already does. The problem is that the information that is being disseminated is often incorrect and sometimes incomprehensible. Most recently, a municipality undergoing OMIG audit was asked to produce documentation of OTA supervision. The municipality responded by providing copies of co-signed notes, co-signed quarterlies, and other interim notes that were written by the OTR. There is no rule or regulation that dictates the EXACT nature of these notes - just that it is occurring on a regular basis to review treatment and foster professional development of the OTA. In my estimation the municipality provided appropriate documentation - but OMIG pulled out what appears to be some pages from an old NY City Medicaid billing manual that requires even more in depth documentation. The municipality forwarded this to the occupational therapist, who at that point felt under the gun for not providing the correct documentation. The municipality is not a regulator of any profession and is relying on State Ed or OMIG to provide correct information - so now the municipality thought that the OT wasn't doing the right thing!

Since when did an old NYC Medicaid billing manual supersede State Ed Law and previous documentation requirements of the Medicaid program?? The bizarre part of this all is that the presumed pages of the NYC Medicaid billing manual also have a requirement that OTs be registered by AOTA. I am not sure of the last time that AOTA registered anyone, since it is a voluntary membership organization. Back in the early 1990s AOTCB which was loosely connected to AOTA, provided certification for OTs and OTAs - but that function was taken over by the renamed NBCOT which spun off of the professional association and took full independence as a credentialing agency OVER 20 YEARS ago! Someone needs to update the NYC Medicaid billing manual, apparently.

Someone also has to stand up and ask why an old NYC Medicaid billing manual became the governing document for how to document services.

Also, these strange requirements out of an old NYC billing manual are being retroactively applied to providers across the state. People functioning in the corners of NY were not following the requirements of some arcane and outdated NYC billing manual - and the 'non-compliance' is being mathematically applied across the 'universe of claims.' So now old NYC billing requirements are being randomly applied in areas around the state that never before were exposed to these requirements. They aren't BAD requirements in themselves - but they were never before required.

The bottom line is that the municipalities will not be paid for many of the services that were provided because therapists in Niagara Falls did not think ahead and follow the old NYC Medicaid billing manual. That is insane. It is one thing to decline billing based on fraud - but it is quite another matter to apply some previously unknown standard to decline legitimate claims.

The point here is that people in OMIG and State Ed are just making this up as they go along. That places municipalities in the middle, and it places providers at the bottom of the pole trying to figure out what to do. I don't even know where it places the recipients of services - they are just lost in this whole mess.

I am sorry to report this - but it all gets worse. Paying back the money that was fraudulently billed is understandable - but now we are forfeiting money that should be legitimately paid on legitimate services. The Settlement Agreement signed by the Wizards of Albany effectively throw away your 8th amendment rights - so you are not secure against unreasonable fines and penalties. This is highly amusing to me - but how can a State toss out the 8th amendment rights of its populace? 'Excessive' fines and punishment takes on a very different meaning when it is applied to the State as opposed to an individual. Is anything 'excessive' when the State has unlimited revenue (your tax dollars)???

The dismantling of early intervention by making new Medicaid policy around the edges of the problem is a 'hiding in plain sight' issue, but to understand what is happening to early intervention you need to do a deep dive into power, control, and politics.

Counties are required to follow the requirements of OMIG if they want reimbursement, and they feed the requirements down to locals. The locals do not represent a politically connected constituency. Local providers are individual people who are often contractually related to municipalities. They are not represented by Unions, and their interests are only partially represented by their respective trade associations - none of which are particularly strong or powerful in Albany terms. To make matters worse, there are no formal lines of communication and coordination between the trade associations.

You can be absolutely certain that if a giant multi-million dollar settlement for Medicaid fraud came down on the heads of hospitals that HANYS would have found a way to see the 'draft' document and they would have filed an Article 78 proceeding or maybe even a lawsuit to make sure their interests were protected. There is no such political power among preschool or early intervention providers - and that made the constituency very easy pickings for the U.S. Department of Justice and the Wizards of Albany who were willing to have you all to 'take one for the team.' I am using polite terminology.

This was all predicted nearly six years ago. Still, let me assign blame all around because if we understand our role in the problem then maybe we can adjust our priorities and make sure we don't end up with this happening again.

1. I blame myself, because despite my blogging and ranting about it I was largely ineffective in communicating the issue to relevant stakeholders who might have helped to engage the problem.

2. I blame all the people who label this post as 'boring' and write me emails wondering why I don't write more about treatment ideas. This is a population of therapists that is too large and they need to understand that lack of political engagement is jeopardizing care to a very vulnerable population. Also, jobs are now at stake - that may wake some people up. I especially worry about the OTA and PTA population, because based on new burdensome requirements there is significantly less reason to hire or employ these professionals.

3. I blame educational programs that have ultimately failed to educate therapists on the importance of policy on practice.

4. I blame all the trade associations who needed to see this as a very top priority and neglected to give this issue the attention/resources it was due.

5. I blame municipalities for not fighting back. I do not know if a municipality has standing to contest an agreement made by the State with the US DOJ, but on principle alone they should have been less passive.

6. I blame politicians and lawyers who brokered all this and actually understand this whole issue really well. They do not have the courage to address problems directly so instead they take aim at a disenfranchised group of service providers who have no political clout to do anything about it.

All of this will save NY State untold millions of dollars. This is something that is needed - but it will all happen on the back of our educational system for disabled children. There is no question that we needed reform but of all the places to squeeze money out of the system is this really the place to start?

Tuesday, February 15, 2011

The rocky start to my pediatric injury prevention career

I don't frequently blog about my interest in pediatric injury prevention because our Facebook page is a much more convenient way to share information and messages about that topic.

Today I thought I would tell a quick story about one of the driving events that got me thinking about injury prevention. The thought was prompted by a story on one of my favorite websites, They have a feature on furniture tipovers that reminded me of an incident that happened to my son when I was a brand new parent over 20 years ago.

My son was nearly three years old and a very active toddler. I was watching him play in the fenced in back yard and he had his little toys, the family dog, and a toddler sized slide to keep him busy. It was a safe environment, I thought.

He managed to fall off the toddler slide and immediately began crying that his leg was broken. Knowing that toddlers are frequently right when they use this language, I splinted his lower leg and rushed him to the hospital.

Somehow his fracture was a spiral fracture, and this is commonly associated with a twisting type of force applied to the limb. I couldn't really see how he twisted his leg when he fell and my description of the injury didn't match the x-ray. I spent the next couple hours telling and re-telling the story to multiple doctors, nurses, social workers, and just about anyone else they could think to send over to me. I appreciated that they wanted to rule out abuse - but it was scary being on the receiving end of all those questions.

For the inspired, here is an interesting case discussion about tibial spiral fractures in children.

Anyway he was casted and sent home. The doctors put him in a full leg cast because they didn't want him to attempt walking. They didn't understand my son, who was not about to let something like a long leg cast stop him from getting around!

For the first day it was mildly entertaining to watch him attempt to stand, but simple biomechanics placed him at a severe disadvantage. After several hours of trying, I thought he just gave up. I was wrong.

While I believed that he was safely watching television with his cup of juice, snacks, toys, blankets, and everything else safely within reach, I now realize that his toddler mind was just spinning through opportunities and possibilities. When I wasn't looking, he dragged himself over to the entertainment center and attempted to pull himself up using the glass door. Here is a picture of what the entertainment center kind of looked like:

Thankfully the entertainment center was bolted to the wall, but he managed to pull the glass door directly off of its hinges, careening him backwards - causing the door to hit him squarely in the forehead and opening up a rather large gash above his eye. I rushed him to the hospital again.

He was pretty traumatized, and required seven stitches to close the wound. My confidence in safe parenting aspirations was functionally shot - it was a horrible string of misfortune. I thought the worst part was going through another two hours of questioning by the hospital workers who really did not believe my story - but actually it was even worse watching him placed in a velcro restraint board so he would be still enough for them to get the stitches in. It was horrible.


These events, when my son was nearly three, launched my interest in pediatric injury prevention. I didn't incorporate this interest into my occupational therapy work until several years later when I had the opportunity to help develop a safe transportation program for children who were being sent home from the hospital in spica casts.

Anyway, you can 'Like' our Facebook page if you are interested in receiving periodic information about pediatric injury prevention!

Monday, February 14, 2011

Narrative perspectives on adolescents who have autism spectrum diagnoses

I read an article the other day that gave a lot of statistics about how teenagers who have autism spectrum disorders receive significantly less case management services, therapy, and medical care after they leave high school. That does not surprise me. Then earlier today a colleague was asking about interpretive phenomenology. That made me think I should write down this story. It gives a different perspective on the problem that moves a little beyond the statistics in the article referenced below.


Cindy's mom called the other day, and I was pretty certain she was calling about concerns with her young preschooler - who is 4 years old and has PDD-NOS. I evaluated Cindy about a year ago and helped the family engage their local school system for services.

Instead she was calling about Emily - and I recalled that she told me about an older daughter who also has an autism spectrum diagnosis. Her older daughter graduated from high school last year and now was not getting any services and was not enrolled in any programs. The mom wanted to know if I could help.

Emily is an eighteen year old young woman who walked into the office on impossibly high heels, chewing gum, and grinning broadly because she only has the cares of a teenager. She was using IPod ear buds which her mom had to ask her to remove, "You know it is rude to have those things in when you are meeting people!" her mom chastised. She seemed like a very typical teenager, but perhaps just less emotionally and socially sophisticated.

Emily recently graduated from high school after a very long and not always successful academic career. Her curriculum was modified so she did not receive a Regents diploma - and she reportedly was not eligible for participation in any post-secondary education unless she took and passed a GED examination. "I was just tired of school," she explained. "I just thought it would be good to take a break." She never participated in any pre-vocational programs and never had a job. She is able to read on a third grade level and can complete simple math problems. She has a lot of orthopedic problems with her feet and knees from years of toe walking. "The high heels were her idea," explained her mom. "She figured that if she wore heels that people would stop asking her why she walked on her toes." It wasn't a bad idea on its surface, actually, but years of toe walking were causing abnormal biomechanical stresses and severe deformities in her feet.

The plan to stay home and take a break sounded relatively reasonable to me - but I also know that a stay-at-home teenager wears thin on parents pretty quickly. It took around 3 months for the family to figure out that talking a break might not really be the best idea.

The problem that they now faced though was that there was no interface into any care systems. The school system was all too happy to wash its hands of the 'problem' of having to develop a transition plan. The family wanted a break and did not want a referral to any programs. That meant less work for the school - and they were very quick to oblige.

I understand that the family has a right to decline services, but it is unfortunate that there was not a better safety net in place that ensures some degree of continuity of care. The problem with this approach taken by the school is that it is just kicking a can down the road. When the time comes for referrals to be made there are no guide rails on the road for this family. There are no systems in place. There is just Emily, who has never taken initiative because the system does not encourage it, suddenly adrift in a very big world.

Emily spends her days listening to music, watching television, and accompanying her mother on errands. She doesn't have any friends. She has a thought to be a fashion designer someday. I'm not so sure how that can happen.

In addition to the foot deformities Emily has severe knee, hip, and back pain. "There isn't much that relieves the pain, except rocking on my back." With a quick "Do you mind??" and without waiting for any answer she lowered herself onto the floor, re-inserted the ear buds, extended her spine into an opisthotonic position and began rhythmically rocking back and forth in her own world as the music blared in her ears.

Emily did not seem to notice or perhaps care that other people in the clinic were watching.

The parent continued talking without pause as Emily remained on her back, rocking back and forth on the floor of my clinic. She was worried for Emily's future, worried about Emily's leg and back pain, and worried about whether they made the right choices as she was leaving high school.

As I listened intently to the parent and observed the confused reaction of people watching Emily I wondered where to possibly take the first movement toward a solution. It is my job to help solve these problems.

Emily rocked and rocked.


JAMA and Archives Journals (2011, February 7). Relatively few young adults with autism spectrum disorders receive assistance after high school. ScienceDaily. Retrieved February 14, 2011, from­ /releases/2011/02/110207165506.htm

Tuesday, February 01, 2011

NY State Early Intervention Program Changes Proposed in 2011-2012 Budget

Here is information from Governor Cuomo's 2011-2012 proposed budget. You can find supporting documents and presentation at

I have BOLDED the proposed budget information and italicized my own comments:

Several changes are suggested for the early intervention program that provides services to children aged 0-3 who have qualifying conditions or developmental delays.

• Recalibrate Early Intervention Rates. To make the cost of Early Intervention more affordable, a variety of changes will be made to payments for Early Intervention providers. These include the following:

- Rate Reductions of 10 percent for Early Intervention. A 10 percent across the board rate reduction will be applied to all Early Intervention service rates. (2011-12 Value: $11.1 million; 2012-13 Value: $24.3 million)

n.b. a 10% rate cut was enacted LAST YEAR. It will be interesting to see if the lower reimbursement rate drives providers out of the program. That may be the actual intent. Fewer providers means fewer reimbursements.

- Restructure Early Intervention Billing Practices. Providers of Early Intervention that receive more than $500,000 in Medicaid revenue annually will be required to directly seek reimbursement from Medicaid and private insurance prior to seeking payment from municipalities for these services. (2011-12 Value: $0.5 million; 2012-13 Value: $1.9 million)

This is a cost shifting technique that has significant implications for large providers. Many are not equipped to handle Medicaid or private insurance billing and have no experience in this area. There will be a steep learning curve for agencies who will have to learn how to navigate these systems. Furthermore, there are delays associated with getting reimbursements from these systems and that may have a significant impact on the cash flow and financial health of the larger agencies.

- Maximize Commercial Insurance Reimbursement for Early Intervention. Insurance companies will be required to pay legitimate claims for Early Intervention Services. Currently, only $13 million, or 2 percent of total gross program costs are paid by private insurance companies, although over 40 percent of children enrolled in the program are covered by private insurance. (2011-12 Value: $0 million; 2012-13 Value: $24.6 million)

This is another cost shifting technique, which has merit but there are significant problems in implementing this. Some municipalities are encouraging providers to become 'approved providers' with local insurance companies so as to allow for recouping costs from the private insurance - but the municipalities have absolutely no experience in knowing how to negotiate fair and reasonable rates with the insurance companies. In one County where we work we were asked to become an EI provider with an insurance company and the proposed reimbusement rate sheet was less than half of the prevailing rate that the same insurance company pays me to see people privately in my office. I refused to sign the contract because of my concern that a day would come where I would have to bill the insurer directly for EI services (as stated above!) and I would be 'locked in' to a substandard reimbursement structure. After refusing to sign a contract for well over a year and after many attempts at educating the municipality on the prevailing wage for therapy sessions, the insurance company finally adjusted the reimbursement for EI to appropriate community standards. The problem here is that the municipality does not know anything about prevailing reimbursement standards and the insurance company was quite adroitly trying to pull a fast one on the municipality. I am still waiting for a thank you letter from that municipality - I believe that I saved them several hundred thousand dollars annually by educating them on prevailing reimbursement rates and by holding out on the contract until the insurance company adjusted the rates accordingly.

- Recover Early Intervention Overpayment for Medicaid Transportation. Achieve
savings due to recoupment of $6.2 million in the State’s overpayment for Medicaid transportation costs. This proposal will recover the overpayment from counties. (2011-12 Value: $6.2 million; 2012-13 Value: $0 million)

- Modify Early Intervention Service Coordination Rates to Use Capitation. In
order to achieve programmatic efficiencies, capitated rates will replace the current methodology of billing in 15 minute increments for service coordination. Service coordination will be paid at a single rate per event or per month regardless of the amount of time spent managing the child’s case. (2011-12 Value: $0.3 million; 2012- 13 Value: $0.9 million)

- Bill Early Intervention Services in 15-Minute Increments. Fifteen minute
increment rates will replace variable unit increment rates (basic and extended). Currently, basic visits are for up to 59 minutes of contact time with a child and an extended visit is for 60 minutes or more. (2011-12 Value: $1.6 million; 2012-13 Value: $6.2 million)

This has already been implemented in 2010-2011. This allows them to be on an encounter-based billing methodology that is consistent with third party payers, but there is a rather steep learning curve for all of the providers - most of which are not accustomed to operating in a medical billing context. They have not yet started reimbursing providers on this encounter based system - perhaps that is next?

- Revise Early Intervention Rates to Update Wage Equalization and Transportation Factors. Rates for home and community-based visits will be revised to reflect updated wage equalization factors that account for salary differences across the State. In addition, other changes to the prices will be made to adjust travel time assumptions which are assumed in the rates. (2011-12 Value: $0.9 million; 2012-13 Value: $1.4 million)

It will be interesting to see what this actually means. You can be sure that upstate people will cry foul if their rates are cut more than downstate - based on cost of living factors. The rates are already geographically adjusted so new adjustment formulas may be suggested.


The sounds that you are hearing are the beginning cries of special interest groups who will do anything to avoid these cuts. The need to cut is real - and some of these suggestions are helpful. I am disappointed that more was not suggested about implementing better utilization management and setting entrance and exit criteria for the program. There is cost savings that will be realized by across the board slashing - but this is not a particularly thoughtful way to enact reforms. You can be more precise with a scalpel than you can with a hatchet, but perhaps the fiscal crisis is so severe that the Governor does not care much about making nuanced decisions and adjustments.