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Legislative Issues and Updates
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Legislative & Government Relations Report

 

February, 2020

 

NYSOTA Advocacy Day

 

The Advocacy Day 2020 is set for March 3rd in Meeting Room #1 at the Empire State Plaza Convention Center. Advocacy Day 2019 was another great success with 502 attendees shattering previous attendance records. Everyone attending should be registering with NYSOTA and contacting their state Senator and Assembly member for an appointment.

 

 

Early InterventionArticle VII 

 

The executive proposal in the Health and Mental Hygiene Article VII bill proposes changes to improve commercial insurance payments for early intervention services.

 

The Governor finally acknowledges that, "Commercial Insurance funds LESS than 2% of total Early Intervention costs although 42% of children (in the program) have commercial insurance. This suggests that commercial insurers are approving (only) 15% of provider claims (submitted to commercial insurance).”

 

NYSOTA agreethat commercial insurance plans in New York should be held responsible for covering the health care needs of the enrollees, and their families, that they collect premiums from. However, the proposed language in this legislation will not succeed in affecting greater cooperation from plans. 

 

The proposed legislation includes payments to providers who are participating in the insurer’s provider network, however, the legislation does nothing to address the current lack of providers in networks. Occupational therapy is rarely well represented in provider networks.

 

The proposed legislation provides that insurance coverage for early intervention services will ultimately hinge on external appeal agent or independent third-party review agent determinations of medical necessity. The problem with this proposal is that the state provides no definition for medically necessary. Occupational therapy and other early intervention providers repeatedly experience inappropriate denials based on determinations that services were not medically necessary. 

 

NYSOTA recommends that the legislature adopt legislation that recognizes the Individualized Family Service Plan (IFSP) for each child as establishing medical necessity.

 

NYSOTA recommends that the Assembly and the Senate include the Early Intervention Program in the Covered Lives policy. Covered Lives is an assessment on commercial insurance instead of direct billing of individual claims. 

 

 

Preschool Payment Rates

 

Ware urging the Governor and the legislature to increase the reimbursement rates for preschool special education programs and evaluation sites by ten percent. 

 

There are a growing number of preschoolers with disabilities who have a legal right to a preschool special education program under the Individuals with Disabilities Education Act, but who are going without the class they need because inadequate reimbursement rates have created a shortage of these vital programs.

 

Over the past several years, more than 60 preschool special education programs around the State have closed, including more than 30 in New York City. Many of these programs have pointed to the State’s insufficient reimbursement rate, making it hard for them to recruit and retain special education teachers and run high-quality programs.  

 

New York City continues to have a significant shortfall and is projecting that it needs between 1,028 and 1,932 additional seats in preschool special education classes, plus hundreds more in bilingual preschool special education classes and preschool special classes in integrated settings.

 

Rochester’s preschool special class seats are entirely full, with no seats available for children identified as needing them over the rest of the school year.  

 

In addition to the lack of seats in appropriate classes, more than one in ten preschoolers with disabilities (12%) do not receive timely evaluations, often due to a shortage of providers. In some districts around the State, such as New York City and Poughkeepsie, more than 30% of preschoolers were not evaluated within the legally mandated timeframe during the 2017-18 school year—delays that meant children went without the critical services they needed.

 

 

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-B was passed by the Senate last year but despite efforts by the Assembly sponsor, and a meeting with NYSOTA and NYPTA, the Assembly Program & Counsel decided that the bill could not move in 2019 in the Assembly because the Workers Comp Law had been extensively revised and they wanted some time to see how the new law 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.  

  

 

Medicaid Out-patient Visits

 

S.2541 has not moved.A.4846 was referred out to Assembly Ways & Means last year. The sponsors of these two bills have not agreed to changing their bills to be the same.

A limit on Medicaid out-patient therapy visits was imposed in the 2011 state budget as part of a large Medicaid reform package to control spending. 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 has recommended an appeals process to over-ride the current 20 visit limit. The Assembly supported NYSOTA’s position re. an appeals process in 2011.Now there is not support in either the Assembly, the Senate, or the Department of Health, saying that an appeals process 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. 

 

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 copayments 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.

These bills saw no progress last year. 

The bill language reads, “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.”

 

 

Direct Access to Occupational Therapy 

 

A.8889 by Assembly Member McDonald allows patients up to twelve visits with an occupational therapist without a referral from a physician, nurse practitioner or other health care provider; provides that the occupational therapist inform the patient of certain potential insurance issues.

 

The licensed occupational therapist has to have practiced occupational therapy on a full-time basis equivalent of not less than three years. And the occupational therapist must provide written notice to each patient receiving treatment absent a referral from a provider that occupational therapy may not be covered by the patient's health care plan or insurer without such a referral and that such treatment may be a covered expense if rendered pursuant to a referral. 

 

 

School based Occupational Therapy

NYSOTA and AOTA have been exploring what is needed to improve the role and position of occupational therapy in school-based practice. This exploration included researching the current status of regulations and laws regarding school-based professions in New York. 

One of the objectives that has been identified by practicing occupational therapists is eligibility to pursue leadership training and positions of leadership in schools. From our assessment the way to achieve this objective is through certification under the regulatory category “pupil personnel services.” The social workers have this certification by completing 2 years of work and a few required training sessions.  

In New York school certification for occupational therapists would require an amendment to the Commissioner’s Regulations, which would have to go through the Board of Regents.

NYSOTA and AOTA set up a meeting with the Office of Teaching Initiatives to start a discussion about school certification for occupational therapy. A week before the meeting the Office of Teaching Initiatives reported that they had met with the Commissioner of State Education and decided to cancel the meeting over a number of concerns re. the proposal:

“A new tenure area would also be created for school occupational therapists, meaning that school occupational therapists as well as school districts and BOCES would need to adhere to tenure requirements.”

“…if a School Occupational Therapist certificate is created, then school districts and BOCES must hire certified occupational therapists as employees and could no longer hire licensed, but uncertified, occupational therapists on a contract. Department leadership is particularly 

concerned that eliminating the option of contracts would create occupational therapist staffing issues in school districts and BOCES.”

NYSOTA asked to begin conversations with the Office of P through 12 in August and we have not heard back.

NYSOTA and AOTA are now planning to reach out to key members of the state legislature to share this information.

 

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 2019 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 in 2019 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/L, MSW, FAOTA

Legislative & Government Relations Coordinator

legislation@nysota.org

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