Support regulations to remove potential conflicts of interest in the New York State Early Intervention Program

More regulatory mumbo-jumbo, while I am on a roll:

The New York State Department of Health has proposed an amendment to Subpart 69-4 of Title 10 of the New York Codes, Rules and Regulations, the Early Intervention Program. The public comment period ends October 22, 2012.  The new regulations create a requirement for arms-length relationships to tamp down conflict of interest that may be contributing to over-utilization and cost over runs.

An arms-length requirement between evaluators and providers is reasonable given the evidence of inappropriate utilization and significant cost over runs in these programs.  Although not all inappropriate utilization can be attributed to this factor, it is ethically correct for providers to remove any possibilities of conflicts.  Existing rules and regulations, whether in professional practice acts or the EI regs themselves, have not controlled this problem

Here is a pertinent part of the regulation: 

 (ii)(a) For children referred to the early intervention program on or after December 1, 2012, or for children referred to the early intervention program prior to December 1, 2012 for whom an additional evaluation or partial evaluation is requested on or after December 1, 2012 for the purpose of adding a new service, neither the evaluator which conducts an evaluation of a child, an approved agency which employs or contracts with the evaluator, nor a relative or business associate of the evaluator, shall provide early intervention services to such child unless authorized by the commissioner, after consultation with the early intervention official, due to special circumstances related to the evaluator’s qualifications or availability or other extraordinary circumstances in which there is a clear showing that the child will not be able to access needed services absent such authorization.

(c) If the commissioner finds there is a shortage of evaluators or approved providers in certain disciplines in a particular region of the state, the commissioner may issue a standing authorization, on such terms or conditions as he or she deems appropriate, which shall remain in effect in such region until such time as the commissioner determines that such shortage no longer exists. 

Studies completed by VESID clearly demonstrate a pattern of self-referral conflict of interest when the same therapist does evaluations and intervention (not just for  OT, but all professions). This is most notable in NYC in transition from EI to CPSE. In a 2007 study of the statewide preschool cohort, the numbers of children identified as needing services during transition from EI to CPSE were 73% in NYC; 41% in Large Four; and 34% in other districts. NYC has the largest percentage of conflicting incidences, which is why it was named specifically in the regulations as having the greatest impact in that area.

Certainly there are other 'big city' factors that might lead to greater 'identification' when transitioning to CPSE but you still can't escape the face validity to the concern that a potential conflict of interest may exist. Ethical practitioners should not be concerned about this requirement. Exceptions are allowed in the regulations when staffing or other barriers make it difficult to avoid the conflict - but the value itself to respect the potential of a conflict of interest is valid.

Many therapists are upset about this proposed regulation; the New York State Occupational Therapy Association and other groups have written letters opposing the regulation.  However, there is a long term game to consider in all this and in NY specifically our tax-supported care systems are strained to an absolute maximum. Our ability to engage people who need our services through municipal systems is already threatened by ever-changing Medicaid rule complexities, constricted staffing requirements, bureaucratic inefficiencies that fail to capture reimbursements, and many other factors. If the programs are going to survive then we should be at the table and we should be making honest attempts to promote quality and to control costs in those areas where legitimate concerns are presented. That doesn't mean we are promoting governmental interference; rather, we should be at that table and helping to shape that policy so that we can actually fix these broken systems.

 The need to reform our systems is obvious.  Therapists are losing jobs, reimbursements are decreasing, caseloads are increasing, and requirements for documentation become more burdensome each day.  We will not positively contribute to reform if we refuse to accept reasonable regulations like this one.

Or we can just go kicking and screaming into the night, refusing to budge and refusing to compromise. This system has to change - and it will change whether people participate productively or if they simply attempt to obstruct. 
There is no harm done by a regulation to promote an ideal of removing all potential conflicts of interest when we are working within municipal/tax-funded systems of care.  I see no problem whatsoever with this new requirement.  Quite frankly, I find it embarrassing to see the state associations and other professional groups opposing this.

You have until 10/22/12 to register your comments to the State: 

Katherine Ceroalo
New York State Department of Health
Bureau of House Counsel, Regulatory Affairs Unit
Corning Tower Building, Rm 2438
Empire State Plaza
Albany, NY 12237
(518) 473-7488
(518) 473-2019 (FAX)


A longitudinal study of preschool special education: Final report. (September 6, 2007).  Retrieved from

Proposed regulations: NYS Department of Health.  Retrieved from 


Leslie Grubler said…
Being at the table to shape a meaningful policy is EXACTLY what is needed. Numerous organizations have issued their response which just reflects an outright rejection without reference to the necessity to be part of the process of change, to educate policymakers who are NOT hands on providers.

Your perspective is an important read for those who prefer to reject outright rather than reflect and contribute.

Leslie Grubler
LOL so I posted a response to Leslie and she sent me a message indicating that she actually was agreeing with me.

I have now deleted my response back and now please consider this an official apology!

I am obviously not interpreting things correctly. I would blame something like concrete interpretation problems from ASD, but it would be a lie. I think I was just dense or something.

Oh well. Sorry!
Leslie Grubler said…
No apologies necessary... Your patients are lucky to have you...and I'm sure you would say the same about them....

Your perspective is refreshing and hopeful. Thank you for sharing. Lets hope others come to the same conclusion for what are the right reasons....Thanx again.
Rhonda Henneberry said…
You reference a VESID report in your post, and quote stats from same. Can you provide a link to that report? I am an OT student researching EI in preparation for OT Lobby Day. I would love to have some numbers to back up my sentiments. Thanks so much!
The VESID report is linked at the bottom of the blog post. Look under the 'Methodology' section and you will find tables with the information about EI to CPSE transition.

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