Affiliate Update 2012

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11-21-12 CP News

11/21/2012 10:42:19 AM

An HTML version of the 11-21-12 CP News can be found here.



11/21/12 Affiliate Update

(Volume #18 – Issue #16)



Thomas J. Caserta, Jr., Esq. was elected to a two-year term as Chairman of the Board of Directors of Cerebral Palsy Associations of New York State at the annual meeting held in October.

Mr. Caserta has been a member of the CP of NYS Board since 2002, serving on the Finance and Governmental Affairs Committees. He was elected Vice Chair in 2010. He has also served as Chairperson of the Board of Directors at Niagara Cerebral Palsy since 1997. He is a resident of Youngstown in Niagara County, sole practitioner of a law firm in Niagara Falls and serves as the Village Attorney in Youngstown.

Mr. Caserta is succeeding Jack M. Weinstein, Esq. who had served as Chairman since 2010.

-Al Shibley

Thomas J. Caserta, Jr., Esq.



Super Storm Sandy and the Nor’easter that followed a few days later, wreaked massive destruction in New York City, Long Island and the Hudson Valley. Downed trees and storm surge caused the loss of electrical power to more than one million New Yorkers. The New York City subway and highway tunnels flooded cutting off Manhattan. Most transportation was stopped in suburban areas because of impassable roads.

CP of NYS and Affiliates throughout the downstate area were without power and water for days. Many residents were evacuated and some have still not been able to return to their homes. But our staff carried on and continued to do their jobs despite the fact that some of them also lost their homes to the storm.

Employees at CP of NYS Metro Services and Affiliates in NYC, Queens, Nassau, Suffolk, Westchester, Rockland, Orange, Sullivan, and Putnam & Dutchess worked around the clock to ensure that the people they support were safe and comfortable.

Government and private agencies are helping as much as they can, but it will be months before any sense of normalcy returns to many areas. Areas like Breezy Point in Queens, where more than 100 houses burned to the ground, and Midland Beach in Staten Island, where a dozen people died in a flood, may never fully recover.

A fund has been established to help employees of CP of NYS and its Affiliates start the recovery process. Details about how to help can be found here We are also gathering stories about how staff at CP of NYS and its Affiliates responded to the storm. Those can be found on our website here or on facebook here

-Al Shibley



Thanks to a $5,000 grant from the New York State Elks Association Major Projects Fund, CP of NYS is moving forward with plans to hold a Disability Sports Specialist Training workshop next spring in Queens. The two-day training will qualify about 40 Affiliate staff as certified disability sports specialists. The training includes risk management, injury prevention, information on paralympic sports structure, athlete development skills and updates in technology in disability sport, among other topics.

The support of the New York State Elks Association for CP of NYS, our Affiliates and the people we serve has never been stronger and we are grateful for all their organization does on our behalf. The annual donations to our Home Service Program, as well as the many projects, both large and small conducted by individual lodges for local CP of NYS Affiliates, help us to provide opportunities for people with disabilities to be fully involved in their communities.

The workshop in Queens will provide training for Affiliate staff interested in creating recreational and competitive athletic programs for people with disabilities. This will enable staff to help program participants be more physically active, healthier and more involved in their communities. This gift, like so many others from the Elks, helps us to accomplish our mission.

Elks Grant Check

James Peace, Board Chairman of New York State Elks Major Projects, Inc. (right) presents grant check to Mike Alvaro, Executive Vice President, CP of NYS.


-Al Shibley 



The U.S. Secretary of Health and Human Services and the Center for Medicare Advocacy recently announced a proposed settlement of a nationwide class-action lawsuit that is expected to significantly expand coverage of therapy and skilled nursing services for Medicare beneficiaries with chronic conditions or disabilities. The settlement must first be approved by the court, a process which could take several weeks.
The case, Jimmo v. Sebelius, was brought by the Center for Medicare Advocacy on behalf of a class of Medicare beneficiaries.

The case, filed in January of 2011 in federal district court in Vermont, challenged Medicare’s use of an "improvement standard" in determining medical necessity for skilled nursing services and outpatient therapy on the grounds that it violated Medicare law and deprived Medicare beneficiaries of needed care. That standard effectively denied coverage for skilled nursing facility ("SNF") care, home health ("HH") care, and outpatient therapy ("OPT") services on the basis that an individual was not improving, without regard to the reasonableness and necessity of the care.
The improvement standard does not appear in Medicare statute or regulations but instead is a de facto "rule of thumb" that has been used by Medicare contractors for years to deny or discontinue care. The weight of this rule fell most heavily on Medicare beneficiaries with disabilities and those with chronic conditions. Many of these patients are unable to obtain the skilled services they need to manage their chronic condition, maintain their existing function, and prevent or limit deterioration of function as a result of application of this standard.

Attorneys from the Center for Medicare Advocacy and the Centers for Medicare & Medicaid Services (CMS) have agreed to settle the "Improvement Standard" case, Jimmo v. Sebelius.  A proposed settlement agreement was filed in federal District Court on October 16, 2012.  When the judge approves the proposed agreement, a process that may take several months, CMS will revise the Medicare Benefit Policy Manual and other Medicare Manuals to correct all suggestions that Medicare coverage is dependent on a beneficiary "improving." New policy provisions will state that skilled nursing and therapy services necessary to maintain a person's condition can be covered by Medicare.

CMS will then undertake a comprehensive nationwide Educational Campaign to inform health care providers, Medicare contractors, and Medicare adjudicators they should not limit Medicare coverage to beneficiaries who have the potential for improvement. Instead, they must recognize "maintenance" coverage and a beneficiary's need for skilled care that is performed or supervised by professional nurses and therapists.  Jimmo will be certified as a nationwide class.

CP of NYS will continue conversations with NYS DOH regarding the impact this settlement will have on our clinics, specifically regarding any back billing for dually eligible individuals.

Although it has been suggested that prospective billing for the long term therapy services could begin immediatley, CP of NYS is recommending that Affiliates wait to begin billing for these services until the settlement is finalized and CMS issues guidance.  In addition, Affiliates need to ensure that the Medicare documentation standards are met for these services. 

We will keep Affiliates updated on this issue and continue discussions regarding systems and documentation during our biweekly clinic update calls.   

-Barbara Crosier



Senator-elect Simcha Felder (D-Brooklyn) said this week that he would caucus with Senate Republicans, giving them one more seat in their fight to hold majority control. The defection effectively gives the GOP 31 of the Senate's 63 seats, with Democrats claiming control of 30. Votes are still being counted in two Hudson Valley Districts.


In one of the two districts where votes are still being counted, Senator Steve Saland (R-Poughkeepsie) appears to have lost to Democratic challenger Terry Gipson. In the other, Assemblyman George Amedore and Democrat Cecilia Tkaczyk are too close to call. The 46 district was created without an incumbent as part of redistricting, and Republicans give Amedore the edge because of the large number of  absentee ballots turned in by voters.


Still up in the air are the allegiances of several more Democrats who each have a vote in electing the majority leader in January. The four-member Independent Democratic Caucus (IDC) has not committed to either side. The IDC members are Senators David Carlucci of Rockland, David Valesky of Syracuse, and Jeff Klein and Diane Savino of New York City.


As a result, it may be many weeks before it is clear which party will be in the majority and control the New York State Senate.


-Barbara Crosier






Medicaid Matters New York (MMNY), a coalition of more than 100 groups that advocate on behalf of New York State Medicaid recipients, held their Fall meeting at the CP of NYS New York City office.  This bi-annual, in-person meeting is a good opportunity for advocates across the state to discuss their concerns and priorities for the upcoming session. The CP of NYS New York City office was a perfect location for advocates who came into the city by train as well as advocates from around the city for its central location which was unaffected by Super Storm Sandy. 


At the meeting, it was decided that MMNY would form a workgroup to examine the OPWDD “Person First Waiver” so that MMNY can advocate on behalf of Medicaid recipients who will be affected by the new waiver.  Barbara Crosier, from CP of NYS, and Steve Holmes, from the Self Advocacy Association of NYS, will co-chair this new workgroup. 


-Barbara Crosier







The U.S. Department of Health and Human Services (HHS) Secretary Kathleen Sebelius extended the deadline to December 14th for state officials to notify HHS that they will operate health insurance exchanges. The Affordable Care Act requires the federal government to run the private health insurance marketplaces in states that do not elect to create exchanges. New York State has already notified HHS that New York will operate its own Health Exchange.


-Barbara Crosier







A Federal District Court in Manhattan will allow a class action lawsuit to move forward on behalf of 900,000 residents with disabilities who claim that New York City is not prepared to address their needs in emergencies and disasters. Among other issues, the suit alleges that there are serious gaps in the city’s plans to accommodate people with disabilities at city shelters and to evacuate them from high rises. The suit originally was filed last year after Hurricane Irene. After Hurricane Sandy, the judge said that “. . . it is beyond ‘mere conjecture’ that another disaster, whether natural or man-made, will occur and that it will seriously affect members of the proposed class.”


-Barbara Crosier




The Board of Regents has approved the emergency adoption of an amendment to section 100.5 of the Regulations of the Commissioner of Education, effective October 31, 2012, to provide an additional option for a student with a disability to earn a local diploma through the use of a "compensatory option." For more information, see


-Judi Gerson



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