Monday, March 27, 2017

Governor Cuomo and the Early Intervention State Fiscal Agent boondoggle

Another update in the ongoing saga of the failing New York State Early Intervention program:

The Governor's 2018 budget proposal adds new requirements on insurance companies and providers.  Under other circumstances, a provider or fiscal intermediary would simply operate within the available rules that exist in the private marketplace, but since the State has designated a fiscal agent that is unable to compete in the free market, the Governor is forced to rewrite insurance laws in order to facilitate payment.

 In FY 2016, nearly 85% of claims submitted by the Early Intervention State Fiscal Agent to private insurers were denied.  The idea of cost sharing with private insurance has been a failure because the State botched the implementation and has contracted with an incompetent fiscal agent.  The breakdown of payment of Early Intervention costs has been as follows:

Private insurance: 2%
Medicaid: 41%
NY State: 27%
Counties: 30%

This is AFTER the State invested millions of dollars into a private contract for a State Fiscal Agent.  Providers went out of business in this transition and services to families have been compromised because of the ineptitude of the process - and now new laws are being proposed in order to address the obvious failure.


The following new proposals are included in the Governor's budget:

1. Placing new requirements on service coordinators and providers to obtain insurance information and signed IFSPs from referring doctors (attesting to medical necessity).

2.  Requiring providers to exhaust appeals before unpaid balances hit County books.

3. New mandates for payment on insurance companies.

Having a requirement for a doctor to certify that an IFSP is medically necessary is unrealistic.  Additionally, not all early intervention services will fall within the strict guidelines of 'medical necessity' because the program is not only a 'medical program.'  This issue hits at the heart of what happens when States get into the habit of using Medicaid funds for non-Medicaid activities.

These kinds of reforms also become unwieldy and complicated simply because of the existence of the failed State Fiscal Agent.  So as an example, a provider must now exhaust appeals which seems reasonable - but if an insurer is denying payment because the fiscal agent has improper coding procedures or if they are billing under a non-participating provider - it only serves to slow payments to providers even more.

As I have advocated from the beginning of all this, releasing providers to compete directly in the private market and having them bill insurance companies directly would immediately solve all problems with participating provider denials and it would solve issues of odd local coding anachronisms.  The State could be free to negotiate whatever cost-sharing agreement with the insurers, probably through the creation of regional service level caps, at which point the balances would be billed or waterfalled to a centralized New York State reserve fund.  That would remove the Counties and the designated fiscal agent from the equation altogether, saving millions of dollars in program costs and in shifted Medicaid responsibility.

As it now stands, the NYS Senate rejects the Governor's proposals, the Assembly partially accepts them, and the Counties support the proposals but want even more protections in place so that these costs never hit their balance sheets.

What does that mean?  The proposal will be worked out in backroom deals in Albany, and the provider community and families will not have much voice in the process.  The system will continue to fail.

As I have indicated in the past, savvy providers will learn to participate in insurance networks privately (including Medicaid) and will learn to bypass this failed system by seeing families on a private basis.


Read more at these links - and contact your representatives if you want, but the real solution of eliminating the failed State Fiscal Agent and adopting a modified model of privatization as outlined above is not even on the table.

Read the FY 2018 Article VII Bill Health and Mental Hygiene (HMH): https://www.budget.ny.gov/pubs/executive/eBudget1718/fy18_budgetLegislation.html

Read the FY 2018 Memoranda in Support, Health and Mental Hygiene (HMH) Memo:  https://www.budget.ny.gov/pubs/executive/eBudget1718/fy18_budgetLegislation.html

Read the NYSAC Budget Comparison Fact Sheet on Early Intervention: http://www.nysac.org/nysbudget

Saturday, March 25, 2017

Reasons to yawn: Wrap up analysis of two recent SCOTUS cases involving IDEA


On 11/8/16 I wrote

In both of these cases it is important to carefully analyze the details of what is actually being litigated.  So often the truth of what is being discussed gets lost in poor reporting about the topics.  For example, many news outlets focus on the 'evil school district vs. the child in the wheelchair with Wonder the GoldenDoodle' meme instead of focusing on the decidedly less appealing 'what is the importance of due process' angle.

As OTs become more savvy with policy analysis they will avoid the bias-trap of media reporting and try to approach a more 'rational comprehensive' method of considering the actual facts.  They will also become more savvy by dropping the naive notion that just because an issue might have the superficial appearance of something that should be supported, it is important to dive deeply into the actual policy to make sure we are promoting what is best for the people who seek our services.

Turns out that this analysis was essentially correct regarding the separate cases of Endrew and Fry.

In the Fry case the issue at hand turned out to hinge on the concept of 'administrative exhaustion' or whether or not a family had to satisfy IDEA due process rules before bringing an ADA lawsuit.  According to the decision, if the issue is not related to IDEA, there is no such requirement.  In this case the Fry family was not arguing about educational rights - they were arguing about wanting a monetary award for emotional distress.  Since the 'gravamen' of the concern was not IDEA the Court ruled that there was no need to exhaust IDEA due process.

This will have little to no impact on service delivery in school systems.  Over time we may see more lawsuits filed against schools earlier in the process, with savvy lawyers parsing out IDEA concerns and other non-IDEA concerns like 'emotional distress.'  Schools will have to respond differently to the possibility of dual-process complaints.

Bottom line: this was not an IDEA case.  It was a case that outlined rules for lawsuits under the ADA, wrapped in poor reporting and media obsession with the click-bait of little disabled children and their cute dogs.  The media got their clicks, the family got to sue under the ADA, lawyers have new strategies for making money, and the rest of us can go about our work.

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The Endrew case was specifically related to IDEA as it wrestled with the central question of FAPE and what was considered 'appropriate.'  There have been a number of interpretations about FAPE criteria - most of the criteria discussed openly in courts but not openly in IEP meetings.  At issue was whether or not a de minimus standard could be considered 'appropriate' and the Court ruled that it was not.

That won't do many families much good because I don't  believe that most IEP teams sit around the table and design plans aimed at that low bar - and even if that is the end result of their efforts you would be hard pressed to ever find that recorded.  Schools will always believe that they are reaching for the stars.  An analysis of the mission statement of any school district shows the public proclamation that the goal is to create exemplary world citizens blah blah blah.

So even if the issue of FAPE came up in meetings before it was generally answered with 'We don't have to provide the BEST program; we have to provide a program they can BENEFIT from.'  In simple terms that is known as the Rowley standard, related to a previous SCOTUS decision.  Again, most school districts do not openly publicize that their definition of benefit is a de minimus standard.

The Endrew case is interesting in that it shuffles the words on FAPE, now indicating that a school has to provide an individualized education program that is reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances.  That is a rejection of the de minimus standard - something that a word-parsing lawyer might argue in court but that I have never heard as a guiding policy around an IEP table.

Unfortunately, from the perspective of real world guidance, now you will hear schools say that their IEPs are designed in light of the child's circumstances and that they are reasonable.  The Court affirmed the role of schools acting in a good faith effort based upon local professional judgement - and specifically stated that they have no interest in developing a "bright-line" standard for schools to follow.  Deference is based on the expertise and judgement of the schools.  Plain and simple.

If you want to understand what the SCOTUS did with this case, look at this video, and imagine the bullets as 'the definition of FAPE'



As such, this decision also will not amount to much.  The definition of FAPE is no more clear today than it was under Rowley.  Perhaps the only thing that changed is that some lawyers will no longer make the de minimus argument.

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Neither of these cases will have much lasting impact on everyday work in school systems.  They only clarify strategies to be used and avoided by lawyers when the rare case actually gets into a court.


Wednesday, March 15, 2017

You can't keep a good event down...


...but you might delay things just a little while because of winter weather!

Today a gathering was scheduled in Clifton Springs for a celebration of the occupational therapy founding.  The mayor was also scheduled to issue a proclamation but the celebration had to be postponed due to inclement weather.   

The event will be rescheduled.

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The March 8. 1917 Clifton Springs Press had an announcement about the upcoming First Consolation House Conference, but it also had an interesting article about George Barton.  The subheadlines and text of the article are notable because they provide direct evidence of exactly how the Clifton Springs community felt about his efforts and also how influential he was.


The article quotes an unnamed folk source as saying, "You can't keep a good man down, especially when he runs an elevator for a living."  The newspaper editor goes on to state "and in no instance has the editor found opportunity to apply this witicism, where it was found more appropriate than in the introduction of George Edward Barton, A.I.A., a resident of this village, who is known by many, and who but few, really know."

Barton's disability is described in detail, as is his effort to overcome those difficulties and help other people. 


We all look forward to the rescheduled celebration of George Barton and his efforts in Clifton Springs that founded the occupational therapy profession.

 "You can't keep a good event down!" 

Thursday, March 02, 2017

A request for honesty about modern day practice in long term care facilities

Follow-up to Ethical occupational therapy practice in nursing home care


Studying historical phenomenon is helpful for framing modern problems - and so I would like to draw attention to an article that appeared in Modern Hospital in September 1922.

The author of the article, Christine Newman, was Head Aide of the Howell State Sanatorium for Tuberculosis in Howell, Michigan.  The facility is described as "a self-sufficient entity that aimed to meet the patients' and employees' every need with a working farm, apple orchard, convenience store, post office, water and heating plants and kitchen staff."

This model of 'self sufficiency' was common among asylums and sanitariums in the 19th century.  I would like to recommend Dr. Katherine Ziff's book Asylum on the Hill as well as her blog; these resources are invaluable to understanding a model of asylums during this time period and offer a counterpoint for understand modern institutions.

Ms. Newman's article, entitled "Defending my commercialism in occupational therapy," reminded me of the self-sufficiency model described in Ziff's book.  Ms. Newman's article describes the way that she views the occupational therapy service in 1922 and provides a justification for her perspectives and methods.

To start, she overtly states that the purpose of her occupational therapy work has both a "money and therapy aim."  She is decidedly pragmatic in her approach, believing that occupational therapy can serve both a therapeutic and financial benefit.  That is an unusual approach and occupational therapists today are not commonly heard discussing financial revenues so openly.

She outlines an interesting sequence of thinking to support her interest in both aspects.  Her core hypothesis can be represented in this sequence:


This would represent the therapeutic aspect of her thinking - but she layers on top of this the pragmatics of having the patient work on projects that she has need of.  Specifically, she expressed having a need of items that can "sell as fast as we can make them."  She is concerned that many aides were selling their items too cheaply and that this was a disservice to the people who were sick, whose labor should be recompensed as much as any well person.

Again, pragmatics are a guiding force in her approach, as she states
An occupational therapy aide particularly needs clever things [merchandise] because she is too poor to put her valuable labor on things that will not sell.  I know this sounds very commercial, but I still maintain there is just as much therapy in a number of salable things as in the same number of unsalable things, and I can do far more for my patients if my department is on a paying basis.

In ten months of work she incurred $1197.30 in expenses which included her salary and cash received by sale of goods produced was $818.35, leaving $378.95 that the sanitarium had to pay in order to maintain the OT department for the full year.  She was very hopeful that in the second year the OT department could pay for itself.

I was impressed with her argument and presentation, even if the underlying economic focus was troubling, because she at least had some core philosophy (see sequence above) that was  based on why she was doing certain activities.

That got me thinking about modern day occupational therapy in many long term care facilities, where the therapy is often reductionistic, biomechanically oriented, and not attendant to the patient's occupational needs.  There does not seem to be much of a theoretical focus on why a therapist chooses an upper extremity ergometer over repeated exercises with a cane or dowel with weights attached.  I also don't see anyone defending these methods.  Occupational therapists just do them.  And a lot of revenue is generated.

What is even more interesting is that there does not seem to be too much open conversation about the gross profiteering that goes on in those departments.  I am left wondering: what is the financial surplus of occupational therapy efforts in those facilities?  Are the departments self-sustaining?

Instead there are some general conversations about how therapists are supposed to be concerned about ethics in these environments and how different professional organizations get together and have concerns (AOTA/APTA/ASHA, n.d.). The purpose of this collaborative statement is to "emphasize clinician's responsibility to understand payers' policies and regulations, as well as their obligation to act ethically and to report inappropriate practices." (Brown & Hemm, 2015).

It is all very vague - and no one seems to be hitting the issue directly.

We all know that a lot of money is being generated by modern day occupational therapy, and that money is going somewhere.  So where is the modern day article from the clinicians in the field that is entitled "Defending my commercialism in occupational therapy?"

As I am interested in seeing such an article in the modern period, I implore one of my colleagues to write it.

Please incorporate a theoretical justification for the work being done in long term care facilities, even if the economic aspect will remain a primary focus.

I wonder if I will ever see such an article.  Perhaps people were just willing to be more honest about things in 1922?


References:

embedded links, and...

AOTA/APTA/ASHA (n.d.) Consensus statement on clinical judgment in health care settings: AOTA, APTA, ASHA.  Downloaded 3/2/2017 from http://www.asha.org/uploadedFiles/AOTA-APTA-ASHA-Consensus-Statement.pdf

Brown, J. & Hemm, M. (2015, May). ASHA, NASL address concerns in skilled nursing facilities.  The ASHA Leader, 20(5), 8. doi 10.1044/leader.NIB1.20052015.8

Newman, C. (1922). Defending my commercialism in occupational therapy. The Modern Hospital, 19(3), 250-252.

Ziff, K. (2012).  Asylum on the Hill. Athens, OH: Ohio University Press.