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?