This past session, the Assembly introduced A.7772 (Barrett), which would provide relief from an outdated cap on Medicaid physical, occupational and speech therapy that, for the past five years, has been detrimental to New Yorkers struggling to access care that everyone agrees is medically necessary. Addressing the cap on these therapies has been a priority for Empire Justice Center for the past two legislative sessions.
The bill, introduced by Assembly Member Barrett, Chair of the Task Force on People with Disabilities, 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.
Medicaid did not have a cap on these three therapies until the Medicaid Redesign Team’s 2011 recommendation, signed into law the same year, to create a 20 visit utilization threshold. The proposal acknowledged that “some persons may require services in excess of the [20 visit] limit,” but made no provisions to address these individual’s needs.
As a result, for almost six years, the physical, occupational and speech therapy cap in Medicaid has forced New Yorkers on Medicaid to endure pain that could have been avoided, lose functioning that had allowed them to live independently and lose wages. 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.
- 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.” 
- 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. 
- 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. 
- A Monroe County man was 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. 
- 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. 
- 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. 
Had any of these individuals been in the Essential Plan, a qualified health plan (QHP), or a small group plan, or on Medicare they would have had the opportunity to obtain medically necessary care instead of having their treatment options extinguished because of an arbitrary cap.
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. Habilitative services include therapies to maintain or prevent deterioration in functioning. Notably, of the ten group insurance plans New York reviewed when considering what plan would serve as its 2017 base benchmark plan, only one used a 20 visit per year limit. 
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. 
Any financial burden on the state of allowing a medical necessity exception to the cap has largely been mitigated since the cap was created in 2011. At the time the cap was recommended the MRT estimated $4.94 million in savings annually and aimed to track those savings through the Medicaid billing system used for fee-for-service Medicaid. But most Medicaid recipients who are subject to the cap are no longer enrolled in fee-for-service. Instead, they are enrolled in managed care plans, which receive a capitated (per member per month) rate from the state. Moreover, managed care plans, which use utilization review mechanisms extensively, have substantial experience in exceptions processes and evaluating medical necessity. Indeed, a number of Medicaid managed care plans already evaluate the medical necessity of physical, occupational and speech therapy as part of the prior authorization process, in some cases even for the initial visit request. See, e.g., Healthfirst Medicaid Managed Care Member Handbook at 16-17.
Empire Justice Center continues to work at establishing an exception to the therapies cap that will allow Medicaid recipients to maintain and improve their functioning so that they can participate to their maximum capacity in daily life, including work. If you have examples of Medicaid recipients who have been harmed by the current 20 visit therapies cap, we urge you to share them with us to use in our ongoing advocacy on this issue.
 Decision After Fair Hearing, FH# 7338295P, Aug.. 29, 2016, available at http://otda.ny.gov/fair%20hearing%20images/2016-8/Redacted_7338295P.pdf.
 Decision After Fair Hearing, FH# 7318664Z, Aug. 2, 2016. Available at http://otda.ny.gov/fair%20hearing%20images/2016-8/Redacted_7318664Z.pdf
 Decision After Fair Hearing, FH# 7299981Y, Jun. 24, 2016 http://otda.ny.gov/fair%20hearing%20images/2016-6/Redacted_7299981Y.pdf
 Decision After Fair Hearing, FH# 7282819M, May 13, 2016, available at http://otda.ny.gov/fair%20hearing%20images/2016-5/Redacted_7282819M.pdf.
 Decision After Fair Hearing, FH# 7417933N, Dec. 13, 2016, available at http://otda.ny.gov/fair%20hearing%20images/2016-12/Redacted_7417933N.pdf.
 Decision After Fair Hearing, FH#7064574H, Sep. 18, 2015, available at http://otda.ny.gov/fair%20hearing%20images/2015-9/Redacted_7064574H.pdf
 Decision After Fair Hearing, FH# 7147874P, Nov. 18, 2015, available at http://otda.ny.gov/fair%20hearing%20images/2015-11/Redacted_7147874P.pdf
 New York 2017 EHB Benchmark Plan, p. 3. Available at https://www.cms.gov/CCIIO/Resources/Data-Resources/Downloads/NY-BMP.zip.
 Two plans had no cap, one had a 70 visit per year cap, four had 60 visit per year caps, one had a 50 visit per year cap, and one had a 30 or 20 year cap depending on the therapy. New York’s Essential Health Benefit Base Benchmark Options Effective January 1, 2017, p. 5. Available at http://info.nystateofhealth.ny.gov/sites/default/files/New%20York%E2%80%99s%20Essential%20Health%20Benefit%20Base%20Benchmark%20Options_0.pdf.
 42 U.S.C. § 1396r-5l(g).