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Legislative Issues and Updates
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January 2020

 

NYSOTA Advocacy Day

The Advocacy Day 2020 is set for March 3rd in the same room as last year. Advocacy Day 2019 was another great success with 502 attendees shattering previous attendance records. The event was held in Meeting Room #1 at the Empire State Plaza Convention Center, Concourse Level on Tuesday March 5, 2019. Glenn Riddell and Senator Kennedy addressed the groups.


Workers’ Compensation Coverage of OTA Services

A.3753-A by Assembly member Zebrowski, and S.3969-B by Senator Kennedy, amends the workers compensation law to allow payment for treatment services by occupational therapy assistants provided under the workers compensation program. Currently the workers compensation law only covers services by an occupational therapist. The bill will amend subdivision 1(e) of section 13-b of the workers' compensation law. The bills had to be amended after the Governor’s Budget legislation amended this section.


S.3969-A passed the Senate. Despite efforts by the Assembly sponsor, and a meeting with NYSOTA and NYPTA, the Assembly Program & Counsel decided that the bill should not move this year in the Assembly because the Workers Comp Law had been extensively revised and they wanted some time to see how it is implemented and allow time for the WCB to register the current providers.

 

The Assembly bill had been passed by the Assembly in both 2017 and 2018.


Workers’ Compensation

Occupational therapists working with Workers' Comp patients in outpatient settings are required to register with the Workers' Compensation Board as an authorized provider. For further information contact NYSOTA.


The Executive Budget included Article VII legislation that amended section 13-b of the Workers’ Compensation Law regarding the authorization of providers and the definition of such providers. It is a major overhaul of how providers are recognized by the Workers Compensation system.

 

The original language did not include the OT practice act wording regarding the education requirements for licensing an occupational therapist. The words, “at least,” were added to address the fact that some occupational therapists are now graduating at entry level with solely a doctorate degree.

 

In addition, the proposed legislation provided a definition of “provider” in subpart (m) that lists every provider of Workers’ Compensation services except the occupational therapist.


NYSOTA talked to the Governor’s staff and representatives from the Workers’ Comp Board they agreed to correct these two errors. NYSOTA had to make this a priority during the budget process to make sure these two issues were fixed.

 

The regulations, Part 323, Section 323.1 of Subchapter C. of Title 12 NYCRR, to implement this new legislation were released for public comment at the end of June and adopted in September.

 

Some points of significance:

 

·         Applications for authorization by the Workers Compensation Board must be submitted electronically.

·         The date and time of an application shall be the time a completed and electronically signed application is received by the Board. For the purposes of this section, electronically signed shall mean submitted using a valid NY.gov ID business account in the applicant’s name.

·         There is no fee for the WC authorization application.

·         NYSOTA has been told in writing that “OTs providing treatment in an urgent care, emergency room or inpatient hospital setting may continue such medical care without authorization as long as they are employed as hospital (or urgent care) staff.”

·         The regulations allow for providers working in a hospital to register collectively through the hospital, however the WCB has not set up a mechanism for processing this.

·         NYSOTA has been informed in writing that there will be training required for OTs. “It should not be more than 1.5 to 2 hours.”

·         Upon renewing one’s license a provider has to reregister with the wcb within 30 days.

 

OT evidence of a causal relationship to a work-related accident

The workers comp legislation also proposed an amendment to section 13-b of the Workers’ Compensation Law that a “record, report or opinion of a physical therapist, occupational therapist, acupuncturist or physician assistant shall not be considered as evidence of the causal relationship of any condition to a work-related accident or occupational disease under this chapter. Nor may a record, report or opinion of a physical therapist, occupational therapist or acupuncturist be considered evidence of disability.”


Medicaid Cut

The state DOH announced in January 2020 that they are implementing a 1% "across the board" cut in Medicaid payments from January 1st to March 31st. The cut was actually authorized in last year's budget but curiously it did not get implemented until now. The DOH projects a$190.2 million savings from this. The Bureau of Early Intervention announced earlier this week that EI services are exempt from the cut.


Early Intervention 5% Increase in Payment Rate

This proposal was made in the 2019 Executive State Budget and passed. It was a priority on Advocacy Day. However, we learned after the fact that this has not included occupational therapy assistants or physical therapist assistants.


Medicaid Out-patient Visits

S.2541 has not moved and the sponsors have not agreed to changing their bills to be the same. A.7213 hasn’t moved.

 

The 2018 Executive Budget Article VII, Part A, section 5, amended §365-a of the Social Services Law to raise the limit on physical therapy visits to forty per year.

 

NYSOTA recommended an appeals process to over-ride the current 20 visit limit. The Assembly supported NYSOTA’s position re. an appeals process in 2011, but now they are saying that it would be too expensive.

 

S.2541 by Senator Comrie amends §365-a of the Social Services Law and allows for speech, physical or occupational therapy under the Medicaid program to provide treatment beyond twenty visits where the provider of the therapy or services attests to the medical necessity of the additional visits.


A.4846 by Assembly member Barrett amends §365-a of the Social Services Law and allows for speech, physical or occupational therapy under the Medicaid program to provide treatment beyond twenty visits where the provider of the therapy or services attests to the medical necessity of the additional visits. However, the language is different from the Comrie bill.

 

OT and PT Insurance Reform

S.5760 by Senator Breslin and A. 3757 by Assembly member Gunther amends the insurance laws in New York.

 

NYSOTA had to secure a new sponsor and bill in the Senate when Senator Young suddenly retired. Senate Insurance Committee staff met with NYSOTA but did not offer any feedback. The Assembly Insurance Committee staff has not even agreed to meet.

 

The proposed legislation provides that no policy of group accident or group health can impose co-payments in excess of twenty percent of total reimbursement for occupational therapy and physical therapy services.

 

The bill also adds occupational therapy as a covered service under not-for-profit insurance plans.

 

The bill creates an exceptions process for out-patient visit limits.

 

The bill also reforms utilization review procedures by prohibiting health care plans from compensating utilization review agents on a percentage basis or other method which would provide a financial incentive to deny claims; prohibit a health plan from terminating or refusing to renew a contract on the basis that a provider offered or rendered medically necessary care; require utilization review agents to provide adverse determinations to both the provider and the enrollee; require utilization review agents to report to the Department of Health and Department of Insurance respectively the clinical review criteria and standards and the definition of medical necessity used under the utilization plan; require utilization review agents to report any amendments to their utilization review plan within thirty days of such amendment; allow a health care provider to request clinical review criteria and other clinical information which the health care plan might consider in its utilization review.


NYPTA’s Co-payments for PT and OT

S3751 by Senator Breslin and A.405 by Assembly Member Cahill provides that no policy of group accident, group health or group accident and health shall impose co-payments for physical or occupational therapy greater than the copay for similar services provided by a physician. This bill is being pursued by the NYPTA, however, they included OT.

 

“a  policy  shall  not  impose a copayment or coinsurance amount charged to the insured for services rendered for each date of service by a physical therapist licensed under article one  hundred  thirty-six of the  education  law  or an occupational therapist licensed under article one hundred fifty-six of the education law  that  is  greater  than  the copayment  or  coinsurance  amount  imposed  on the insured for services provided to the insured for  an  office  visit  for  the  service  of  a licensed  primary  care physician or osteopath for the same or a similar diagnosed condition even if a different nomenclature is used to describe the condition for which the services are provided.”


New York Health Program

A.5248 by Assembly Member Gottfried and S.3577 by Senator Rivera establishes the New York Health program, universal health insurance for New York state residents.

 

A.5248 was reported out to Codes in February but hasn’t moved since. There seems to be a consensus that the state cannot do a universal health insurance plan without federal assistance.

 

The creation of a Universal Access Commission was proposed in the Executive State Budget but that proposal did not pass. The commission was to evaluate the possibility of a universal     

health care plan in New York. The general opinion in the legislature was that a universal single-payer plan would require the support of the federal government.

  

 

 

Jeffrey Tomlinson,OTR, MSW, FAOTA

Legislative & Government Relations Coordinator
legislation@nysota.org

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