Tag Archives: michael kaplen

Is the Kaplen-Avner Show the problem?

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It is revealing but not surprising that the New York’s Brain Injury Association – not the state’s Traumatic Brain Injury Services Coordinating Council (TBISCC) or Department of Health – is announcing what the next TBISCC meeting will be about.  It is no secret that the leadership of all three groups are, figuratively speaking, in bed together. It is also no coincidence that Michael Kaplen and Judith Avner lead the council and both, until recently, led BIANYS. Avner is still the BIANYS executive director.

According to the BIANYS website, “The September meeting will be dedicated to a discussion of the Concussion Management and Awareness Act (S. 3953-B) which passed the legislature at the end of the session. Discussion will focus on recommendations on the implementation of that legislation to the Commissioner of the Department of Health.” The passage of the act is, without question, a positive step forward. For the council to provide recommendations is all well and good and certainly appropriate. How is it, though, that BIANYS knows, before it is a announced

It is also no secret that little if any evidence exists of BIANYS or TBISCC leadership ever taking the DOH to task for some of its rather brutal treatment of brain injury survivors and, not incidentally, its rather brutal treatment those who provide services to brain injury survivors. New York’s Brain Injury Providers Alliance, for example, has, for some time now, been rightfully pleading with the DOH for a statewide uniform billing policy and they are still waiting.

What is not appropriate and what is an act of disloyalty pure and simple to New York’s brain-injured individuals is the fact TBISCC and BIANYS leadership will do anything but hold DOH accountable.

Some examples:

  • The council was asked to look into the blatant injustice of the state’s TBI Waiver complaint line managed jointly by the DOH and BIANYS. Complainants are never told the outcomes of their complaints, a lack of due process by any measure.
  • With only one or two exceptions, the council has tip-toed around the fact the DOH has told TBI Waiver providers they cannot side with complainants at Medicaid Fair Hearings. BIANYS has completely avoided addressing this issue.
  • The TBISCC and BIANYS remain dead silent even though a recent article in the Albany Times Union  and this blog have reported DOH’s effort to use any excuse under the sun to discontinue housing subsidies for brain-brain injured individuals even when doing so would leave them homeless and jeopardize their lives. 

One question that needs to be asked is this. Is the Kaplen-Avner show the problem? A step in the right direction would be for  Kaplen and Avner to step down, then we would find out.

 

Is the problem NY’s brain injury leadership, the DOH, or both?

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The leadership of New York State’s Brain Injury Association and Traumatic Brain Injury Services Coordinating Council seems determined not to hold the state’s Department of Health accountable for anything.

Is it only a coincidence that the same people have led and, in some respects, still lead both groups?

For years attorneys Michael Kaplen and Judith Avner led BIANYS and now they head up the council.

Avner was Kaplen’s pick for assistant council chair even though she is still the BIANYS executive director. When the two attorneys led BIANYS, Kaplen was the board president. Moreover, Kaplen was a BIANYS board member at the same time he was the council’s chair. It is worth noting too that BIANYS relies on a sizeable grant from the DOH in order to operate, a reality that makes Avner’s post on the council high-risk for potential conflict of interest and, given his past relationship with BIANYS, Kaplen faces the same risk.

Violating NY Public Officers Law

Conflict of interest did not stop Kaplen or Avner from voting for a trust fund that would have clearly benefitted BIANYS. Never mind that during a September 16, 2010 council meeting they were warned against doing so by ex-officio council member Nick Rose. The trust fund was to benefit brain-injured individuals who did not qualify for the state’s TBI Waiver and BIANYS because, according to council minutes, “the Brain Injury Association of NYS ( was to) be contracted (with) to assist with the development”of the trust fund and, it is said, receive a financial percentage of the fund itself.

Despite the warning, Avner and Kaplen voted for the fund anyway, even though doing so appeared to put both in violation of New York’s Public Officers Law.  The council’s by-laws say council “members shall refrain from voting procedures in instances where a conflict of interest  may exist as defined by the Public Officers Law.”

DOH Getting Carte Blanche

As an earlier blog post points out that in its lifetime the council has never really offered so much as a single proposal to the DOH regarding what can be done to help brain-injured individuals in the state, proposals like these being the very reason they were formed in the first place. Similarly, throughout its years with Avner-Kaplen duo at the helm, BIANYS never publically held the DOH accountable for anything, a pattern that has not changed under the current BIANYS leadership duo of Avner and Marie Cavallo. Cavallo is the BIANYS board president. Another recent blog post outlines some of the issues BIANYS refuses to address publically even though they have been repeatedly asked to by this writer.

The fact of the matter is one would be hard pressed to find a single example of either group holding the DOH publically accountable for its actions, including its recent attempt to throw a 66-year-old woman with a brain injury off the waiver and charge her $24,000 in the process. It is worth noting too that in an article by Rick Karlin in today’s Albany Times Union regarding this injustice there is no mention of BIANYS. BIANYS had plenty of time to release a statement to the media because I told them in plenty of time and asked them in writing to take a public stance; a written request that was ignored by Avner and Cavallo, yet both will tell you with a straight face that BIANYS is an advocacy group.

Is the reluctance to hold the DOH accountable  a matter of morally bankrupt leadership in both groups, the power of the DOH, or a combination of both?

The Bottom Line

Managing life with a brain injury is a formidable enough challenge as it is. It should not be all the more formidable because groups like BIANYS, TBISCC, and the DOH reveal an across the board penchant for lip service steeped in moral bankruptcy. Something needs to be done. Maybe step one is for the leadership of all three to step down.

Notes on NYS’s TBI Council

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You simply can’t make it up.

The Traumatic Brain Injury Services Coordinating Council meeting Monday was chaired by Michael Kaplen who flashed some anger during the meeting which would have been laughable were it not so disrespectful of council members and, frankly, brain injury survivors. It earned Kaplen the crown for the meeting’s most despicable moments. On top of that, the NYS Department of Health’s report on the status of the state’s TBI Waiver is something you would have missed if you made the mistake of blinking.

Kaplen’s inexcusably despicable moments came in the wake of an attempt by a brain injury survivor in the audience to ask a question. Kaplen interrupted the survivor telling him there was a protocol which required members of the public to wait until all council members had asked their questions. Kaplen, who is forever proclaiming himself  an expert in brain injury, seems to have forgotten that some who live with brain injuries have memory challenges and may not remember  their questions. When council member Bill Combes of the state’s Commission on the Quality of Care offered to cede his question time to the survivor, Kaplen became visibly angry with Combes. Kaplen was equally angry with council member Barry Dain who pointed out that survivors of brain injury are often faced with cognitive challenges that include memory deficits.

Kaplen’s finger-wagging anger is childish in the best light, bully-like in the worst, and clearly not the kind of behavior one wants in a council member much less the council’s chair.  As for the protocol he referenced, neither the council’s bylaws nor Robert’s Rules of Order – something council bylaws require the council follow – preclude the  council from allowing members of the public to ask questions during the meeting. Kaplen apparently does not feel he is beholden to Robert’s Rules which require that remarks by council members “be courteous in language and deportment.”

When the DOH’s Charlotte Mason reported on the status of the TBI Waiver she said all things were pretty much the same as they were at the time of the last council meeting, entirely omitting the fact the DOH ended the statewide neurobehavioral project with no discernible transition plan in place, leaving everyone with no concrete reason to believe plans have been made to continue those badly needed services in any shape, manner or form. Moreover, Mason did not mention the DOH’s continued assault on services being received by waiver participants nor what some consider a willful effort to discharge as many people from the waiver as possible. Other than council vice-chair Judith Avner asking about the end of the neurobehavioral contract and Combes asking if the DOH had any information about service coordinators being prevented from siding with their clients at Medicaid Fair Hearings, council members asked not a single question about the TBI Waiver.

The DOH’s Mary Ann Anglin answered Combes’ question by indicating a document was being prepared addressing the fair hearings matter which was indeed the very same thing the DOH said months ago.

Is it any wonder members of the real advocacy community and some members of the council itself are clearly frustrated with a council that seems to do just about everything but follow its mandate which, according to its own bylaws, includes “recommending to the (NYS) Department (of Health) long range objectives, goals and priorities. It shall also provide advice on the planning, coordination and development of services needed to meet the needs of persons with traumatic brain injury and their families” and a council that seeks to anything but hold the DOH accountable for its actions?

While both Bill Kraus, acting director of the NYS Division of Veteran’s Affairs, and Tim Donovan of the SUNY Youth Sports Institute, offered impressive presentations about how their respective groups were addressing the challenge of brain injury, Kaplen questioned both men choosing to focus on what they weren’t doing rather than giving them well-deserved credit for the good work they are doing.

During the public comment session at meetings end this writer asked two things of the the council on behalf of the Kahrmann Advocacy Coalition:

  1. To review the current TBI Waiver complaint agreement  between the DOH and the Brain Injury Association of NY State. The current protocol does not require the DOH to inform complainants of the outcome of their complaints. To my knowledge, complainants are never informed. The current complaint line protocol  is absent all presence of justice and is morally and ethically corrupt.
  2. To hold public hearings and invite survivors of brain injury, their family and friends, as well as providers of TBI Waiver services, to report to the council on what they are experiencing with the TBI Waiver.

This writer has filed a FOIL request for all council minutes. It will be interesting to learn how much recommending the council has actually done under Kaplen’s watch and under the watch of his predecessor, Charles Wolf. How many proposals has the council actually presented to the DOH and what has been their fate? Those of us who live with brain injuries as well as our loved ones and the providers across the state who try to help us have a right to know.

It was, I am sure, no coincidence that no copies of meeting minutes were made available for the public at Monday’s meeting. You can request copies of the TBISCC minutes by emailing Cheryl Veith at the DOH: cld02@health.state.ny.us You can also ask that you be put on the mailing list to receive notice of upcoming meeting and copies of the agendas as the become available. The next TBISCC meeting is September 12.

 

A Renegade NYS Agency

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There are, as you might guess,  state and private agencies who put great effort  into convincing the public at large that they truly care about the people they serve and are working very very hard to meet their needs. Peel back a  few layers of public-relations spin and you will oftentimes find nothing could be further than the truth. Too often the motive is to look rather than do good, and raise a little money while you’re at it.

A few people I work closely with are beginning to look deeper into the activities of a non-profit agency. As those of you who read this blog already know, the NYS Department of Health is a problem in nearly every sense of the word when it comes to the lives of brain injury survivors in the state. However, in fairness to the DOH, it does not fall into the category of an agency who tries to look good. It makes little to look good at all because it is hard to determine who is actually holding them accountable. They are an arrogant renegade state agency if their ever was one. The way they treated the TBISCC (Traumatic Brain Injury Services Coordinating Council) earlier this month reeks of arrogance.

The TBISCC, to its credit, has asked the DOH to speak on the problems with Medicaid Fair Hearings being faced by brain injury survivors on the state’s TBIU Waiver because the DOH last year gave a verbal directive blocking their case managers from advocating for them at the hearings. The day before the TBISCC’s meeting on April 14, the DOH notified TBISCC Chair Michael Kaplen that no one would be available to discuss the matter.

Now, this writer and others wrote to the DOH’s  Cheryl Veith asking her to put us on a several years old email-list that tells the public when the TBISCC is having its public meetings and sends out agendas and minutes when they become available. Apparently the DOH has decided the mailing list was too friendly. Ms. Veith responded with “We have recently implemented a process whereby announcement of scheduled TBICC meetings, minutes of the last meeting, and a draft agenda for the next scheduled meeting will be posted for the public to view on the Department of Health website at: www.nyhealth.gov/events/meetings/index.htm.”

Some who live with brain injuries live with memory deficits, processing challenges, and more. Wading through a website can be tantamount to climbing Mt. Everest without oxygen.  This fact has been shared with Ms. Veith and other DOH officials like Deputy Commissioner Mark Kissinger, Mary Ann Anglin, Lydia Kosinski and Carla Williams, all of whom will do their level best to convince anyone who crosses their path that they really really really care about brain injury survivors. So far, a large number of survivors and their families and healthcare professionals who work hard to help us think that’s bunk.

Reinstating the email list is, to use a phrase right out of the ADA, a reasonable accommodation for those of us who live with brain injuries. I doubt they will reinstate it   because for some time now there are two words no one links to the NYS DOH: reasonable and accommodating.

NY State DOH Evasive with State’s Brain Injury Council–Part I

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The New York State Department of Health waited until the day before  the TBISCC (Traumatic Brain Injury Services Coordinating Council) April 14 meeting to inform council chair Michael Kaplen that  no DOH officials would be available to  explain why service coordinators are being told – by the DOH – that they must side against their clients at Medicaid Fair Hearings.  Never mind that the issue had been on the council’s public agenda and never mind that the council had requested presentations on the fair hearing issue at their last meeting.

““I was informed yesterday by the department that although we’d requested presentations at the last meeting as part of today’s program and although those items were in our agenda and in fact was in the published agenda by the health department originally, no one from the health department was available,”  Kaplen said.

Service Coordinators are the case managers for people with brain injuries who are on the TBI Medicaid Waiver. Some brain injury survivors live with communication or processing deficits as well as memory deficits; sending them into a Medicaid Fair Hearing without the support of their service coordinator is like sending a lamb to slaughter, and the DOH knows it.

According to the DOH’s own website, “The TBISCC is charged with recommending to the Department of Health long range objectives, goals and priorities. It shall also provide advice on the planning, coordination and development of services needed to meet the needs of persons with traumatic brain injury and their families.”

The Unwritten Directive

In a telephone conference last year DOH official Maribeth Gnozzio issued a directive saying service coordinators were to side with the DOH if they appeared at Medicaid Fair Hearings. The DOH has no written policy or regulation in place and DOH officials have been careful not to put the directive in writing. Sources say they DOH claims says because service coordinators work for providers who are approved to provide waiver services by the DOH, there is a conflict of interest if they side with the participant. Moreover, because service coordinators get paid for their work, advocating for a waiver participants is self-serving. Both positions have no merit. First of all, the very nature of being a service coordinator requires  advocating for your client. The notion that getting paid for their work is a conflict of interest would be laughable were it not so destructive. Were that the case, doctors, physical therapists, speech therapists, lawyers, psychologists and psychiatrists better not recommend treatment either because they’re licensed by the state too and get paid for their work.

Although Kaplen said the service coordinator “is the individual who possesses the most relevant facts about the individual who is contesting the Medicaid services and who is in the best position to provide at times helpful information to that person at the (Medicaid Fair)  hearing” he offered a startling and rather  Palinesque form of reasoning in support of the DOH position: “You have on the other side of the fence the conflict in regard to whether or not it’s appropriate for that individual (meaning the service coordinator) to be an advocate for that individual (mean the waiver participant) because  they are technically within the same department where the contest is taking place. I understand that conflict.” If he means a service coordinator is a member of the DOH itself that’s going to come as one heckuva surprise to service coordinators around the state, not to mention their employers, who are not the DOH.

To his credit however, Kaplen said, “At  a minimum the service coordinator must be permitted to present factual information at this hearing that the individual can’t possibly present on their own. That this individual needs to rely upon to effectively make their own case.”

Anglin responded by saying, “I appreciate that input. Maybe by the next (council) meeting (in June) we’ll have that guidance out there and we’ll be discussing that guidance.”

Kaplen then asked, “Is this going to be in the form of an official rule allowing for a period of public comment?”

Anglin said, “No. That would be a regulatory change and we’re not proposing to change any regulations. Basically it’s am interpretive guidance on what the current regulations are.”

In many areas of the state, including, but not limited to Long Island and Western New York, waiver providers have been told by the DOH that they cannot support brain injury survivors in fair hearings, this coming at a time when the DOH has ramped up efforts to either discharge waiver participants or cut back on their services. By the time next June rolls around, who knows how many more lives will be damaged by the DOH directive.

During the public comment portion of the meeting, with DOH official Maribeth Gnozzio present,  this writer said the following:

A Response and a Moment of Silence

“Speaking on behalf of the nearly 1,000 members of the Kahrmann Advocacy Coalition, this  has been a hot button issue for quite some time. We filed, I filed a FOIL request with the DOH asking for any regulations, policies, memos, anything in writing, anything, related to their policies on fair hearings. What we received and all we received was a slender binder about how to train an administrative law judge. It’s a curious thing to me because earlier on (during the meeting) Mary Ann Anglin was talking about what was going on (with the drafting of the guidance referenced above) would not require public comment because it was an interpretative guidance of a regulation. Well, if it’s an interpretive guidance of a regulation that would indicate there’s a regulation in existence that is related to Medicaid fair hearings but the (DOH’s) FOIL response only got a binder on how to train an administrative law judge.

It is important that you as council know what we as coalition are hearing. We know that there was a phone conference with Ms. Gnozzio and RRDCs (Regional Resource Development Centers) throughout the state in which the RRDCs were instructed, told, that service coordinators are not permitted to advocate on behalf of participants in fair hearings. Several emails went into Ms. Gnozzio and she responds to nothing nor does she respond to phone calls.

What’s curious to me is when the department is talking about writing a directive, coming up with a policy to address this, there was already a verbal directive. We have members from around the state, they’ve been told by Ms. Gnozzio through the RRDCs that they can’t do this.”

At this point Mr Kaplen asked that I not make this personal to which I said, “It’s not personal. It’s a statement of fact. It seems highly arbitrary and capricious that these directives were given out… We, at this point, experience this as a willful effort to get as many people off the waiver as they possibly can.”

Council members and DOH officials responded with absolute silence. Silence from members of an evasive state  agency that is supposed to care about individuals with brain injuries and silence from a council that is charged with advising the DOH on what the DOH can do  “to meet the needs of persons with traumatic brain injury and their families.”

 

Stay tuned for Part II