Empire Justice Memo of Support: Ensure Access to Medically Necessary Physical, Occupational and Speech Therapy

Empire Justice May 22, 2017

A.7772 (Barrett)

This bill would amend New York Social Services Law § 365-a(2)(h) to create an exception to the 20 visit hard cap on physical, occupational and speech therapy in New York’s Medicaid program when a physician or provider attests that additional treatment is medically necessary.

For the past five years, New York’s outdated physical, occupational, and speech therapy cap in Medicaid has been detrimental to New Yorkers struggling to access care that everyone agrees is medically necessary.  Because of the cap, New Yorkers have endured pain that could have been avoided, lost functioning that allowed them to live independently, and lost wages.  The Medicaid therapies caps are completely out of step with what is happening in commercial insurance and in Medicare.  And yet many Medicaid recipients are sicker and more disabled than their counterparts in commercial plans.  The Medicaid program should no longer seek savings at the expense of individuals’ ability to avoid pain, recover from surgery, prevent physical decline, and return to work.

Below are just a handful of examples of the absurd consequences of having a physical, occupational, and speech therapy limit that has no connection to medical need:

  • A New York City woman was denied physical therapy following a hip replacement because she had previously used 20 visits. The administrative law judge noted that even when physical therapy is medically necessary, Medicaid does not cover more than 20 visits a year. [1]
  • A 49 year old New York City woman had a torn rotator cuff.  At her physician’s recommendation, she received injections and physical therapy to try to relieve symptoms associated with the injury.  When she did not obtain relief, she underwent shoulder repair surgery after which she received physical therapy.  Her request for additional physical therapy to treat post-operative stiffness and limited range of motion were denied despite letters from two of her doctors regarding the medical necessity of the therapies and the administrative law judge’s finding that the woman’s testimony was “persuasive and sympathetic.” [2]
  • An Albany County woman received only two physical therapy sessions after knee surgery because she had used the rest of her allotment of physical therapy treating her ankle earlier that year. [3]
  • A 34 year old New York City man was denied additional physical therapy needed after knee surgery to gain the mobility he required to return to work and avoid another invasive surgery. [4]
  • A Monroe County man had been receiving physical therapy, but when his symptoms were not resolved, he underwent surgery.  He was denied all but one post-operative physical therapy session that he needed to maximize recovery and prevent permanent damage.  Because he had not recovered from the surgery he was not able to return to his job.  While upholding the denial of physical therapy, the administrative law judge advised the man to consult with a physician again at the end of the year to get a new physical therapy prescription. [5]
  • A 52 year old New York City three-quarter house resident suffered a stroke for which he needed more than 20 speech therapy sessions to improve his functioning, but he was denied additional therapy. [6]
  • A student about whom the administrative law judge remarked “there is little doubt that additional physical therapy would be beneficial to her” was denied additional physical therapy at her hearing despite experiencing increased pain and difficulty walking, trouble sleeping, and difficulty climbing stairs to her home. [7]

Had any of these individuals been in the Essential Plan, a qualified health plan (QHP), or a small group plan; [8] or on Medicare [9] they would have had the opportunity to obtain medically necessary care instead of having their treatment options foreclosed because of an arbitrary cap.

Managed care plans are already familiar with exceptions processes sought for these same therapies.  They use exceptions processes for physical therapy sought through their Medicare Advantage products.  And they currently evaluate the medical necessity of Medicaid members’ requests for less than 20 physical, occupational and speech therapy visits.

Establishing an exception to the therapies cap will allow Medicaid recipients to maintain and improve their functioning so that they can participate to their maximum capacity in daily life, including work.

End Notes:
 [1] Decision After Fair Hearing, FH# 7338295P, Aug.. 29, 2016, available at http://otda.ny.gov/fair%20hearing%20images/2016-8/Redacted_7338295P.pdf.
 [2] Decision After Fair Hearing, FH# 7318664Z, Aug. 2, 2016.  Available at http://otda.ny.gov/fair%20hearing%20images/2016-8/Redacted_7318664Z.pdf
 [3] Decision After Fair Hearing, FH# 7299981Y, Jun. 24, 2016 http://otda.ny.gov/fair%20hearing%20images/2016-6/Redacted_7299981Y.pdf
 [4] Decision After Fair Hearing, FH# 7282819M, May 13, 2016, available at http://otda.ny.gov/fair%20hearing%20images/2016-5/Redacted_7282819M.pdf.
 [5] Decision After Fair Hearing, FH# 7417933N, Dec. 13, 2016, available at http://otda.ny.gov/fair%20hearing%20images/2016-12/Redacted_7417933N.pdf.
 [6] Decision After Fair Hearing, FH#7064574H, Sep. 18, 2015, available at  http://otda.ny.gov/fair%20hearing%20images/2015-9/Redacted_7064574H.pdf
 [7] Decision After Fair Hearing, FH# 7147874P, Nov. 18, 2015, available at http://otda.ny.gov/fair%20hearing%20images/2015-11/Redacted_7147874P.pdf
 [8] As part of the required essential health benefits in New York, small group and individual health insurance plans, including QHPs and the Essential Plan, currently have a 60 visit per year cap on rehabilitative physical, occupational, and speech therapies, and an additional 60 visits per year habilitative services benefit for the three therapies. New York 2017 EHB Benchmark Plan, p.3.  Available at https://www.cms.gov/CCIIO/Resources/Data-Resources/Downloads/NY-BMP.zip.
 [9] Medicare places an annual dollar limit on the three therapies, but, critically, provides for an exceptions process that allows coverage beyond the dollar limit where additional therapies are medically necessary. 42 U.S.C. § 1396r-5l(g).