A case that directly involves occupational therapy under the Individuals with Disabilities Education Act (IDEA) may go before the U.S. Supreme Court next winter if the court chooses to hear it. The outcome could affect the way all related services are delivered in the schools.

In Jacob Winkelman et al. vs. the Parma (Ohio) City School District, a child with autism is asking the high court to overturn a 6^thCircuit Court of Appeals ruling that would allow courts to make decisions about the need for related public school services based on things other that what is written in a child's Individualized Education Program (IEP).

Jacob Winkelman was 6 years old in the spring of 2003 when he was set to begin his kindergarten year in the Parma City School District in Parma, Ohio. Jacob had already been receiving therapy at his pre-school, and in preparation for the 2003-2004 school year, the school district had conducted an evaluation of Jacob's needs. According to a statement of relevant facts in the case, in May 2003, based on that evaluation, his OT recommended that therapy be continued because the boy was progressing well with it where he was. The school agreed and signed a team summary and interpretation-of-evaluation document to that effect for continued OT through the summer.

The following month, however, the district presented the family with an IEP the parents hadn't agreed upon; it required Jacob to be re-evaluated for continuing OT services by Sept. 30 in order to receive them in elementary school. The IEP also did not guarantee him other related services that his parents felt had been agreed upon. Jacob's parents took him out of the public schools and enrolled him in a private school. When an administrative hearing officer ruled against their complaint, they filed a lawsuit in federal court.

The school district won its case in three appellate courts by bringing in information supporting its ability to provide such services even if they weren't on the IEP. But in three other appeals, circuit courts ruled against the district, saying that the IEP is the only document of record in such cases.

At issue in this debate, says Attorney Prashant Khetan of Troutman Sanders LLP in Washington, DC, is holding school officials to the bar in obeying the law. His law firm is filing friend-of-the-court briefs on behalf of Jacob Winkelman's request to have the Supreme Court hear the case.

"The 6^thCircuit has given the schools the ability to not put any related services into an IEP," he told ADVANCE. "They will be able to say at any time, 'well, we intend to put it in at some point,' and [if the case goes to court] you end up with a 'he said-she said' situation."

Seven organizations, including AOTA, have filed amici briefs in the case.

Whether the high court will hear the case is still at issue. The Supreme Court must sort through some 5,000 pleas from petitioners who seek to have their cases heard each year. Four of the seven justices must agree that a case should be heard in order to place in on the docket.

A 23-month-old child in Texas has died as a result of the swine flu on Wednesday. The toddler is the first fatality from the condition reported outside Mexico.

Richard Besser, MD, acting director of the CDC, confirmed the fatality and stated he didn't believe "this indicates any change in the strain of the flu."

"Even though we've been expecting this, it is very, very sad," Besser added. "As a pediatrician and a parent, my heart goes out to the family."

"I expect we'll see more cases," Besser said. "And as we do, we'll learn more about this, and if there needs to be more stringent or less stringent recommendations, we'll be making those."

Confirmed Cases
The number of confirmed U.S. cases of swine influenza A (H1N1) virus - swine flu - climbed to 64 early on April 29. The cases are still only in the five states where they previously were reported.

That brings the total confirmed cases to 45 in New York City, 10 in California, six in Texas, two in Kansas and one in Ohio. State health officials in California have confirmed three other cases, and Indiana authorities have confirmed one.

This increase is not surprising. Over the past several days, CDC officials have stated they expected to see an increase in both confirmed cases and severity of illness.

The swine flu virus can be transmitted between humans. It is not clear yet how easily it is transmitted, nor how it is transmitted. It is very likely transmitted by sneezing and coughing, and by skin-to-skin contact with an infected person.

Hospitals Taking Action
Hospitals across the country are preparing.

"Even if we got nothing more than a few more sporadic cases, it's been a great exercise for our whole hospital staff," Thomas Tallman, DO, FACEP, assistant director for Cleveland Clinic Event Medicine in Ohio, and medical director for Disaster Preparedness of the Emergency Services Institute, told Newsweek. "If this illness goes further in America, we have a big advantage in that we had a heads-up, and we kind of saw it coming."

Additionally, American hospitals are better equipped to handle a pandemic as a result of the antiterrorism training many received after 9/11. The threat of avian flu over the past 5 years also gave hospitals specific emergency strategies for influenza epidemics.

The U.S. government declared a public health emergency on April 26 as a result of an increasing number of cases of swine flu, a new type of influenza virus that contains genes from pig (swine), bird and human influenza viruses. Although the effect of the disease in the U.S. has been mild so far, swine flu is suspected of killing at least 159 people in Mexico.

Who's Vulnerable?
Many of the afflicted have been young men and women in their 30s who appeared to be very healthy.

The suspicion is "older people, older then 50, may have developed some sort of partial immunity as a result of prior exposure to a related virus," said Richard Wenzel, MD, MSc, chairman of the department of internal medicine at the Medical College of Virginia Campus of Virginia Commonwealth University, Richmond, VA, and immediate past President of the International Society for Infectious Diseases.

"Therefore, young people are proportionally susceptible. Now, once they get infected why are young people dying? This is really a mystery. One of the possibilities is as we saw in H5N1, the Avian flu, young people have a very robust immune system, and it may be that it overreacted to the virus and actually damages the body's repair system."

Also being questioned is why only one person in the U.S. has died from swine flu when many more have died as a result of the flu in Mexico.

"If the illness presents differently in Mexico but the virus is the same that points to the host being somehow different," said Wenzel.

"Maybe Americans are more likely to have protective antibodies from other vaccines or from previous illnesses. Perhaps the high pollution levels in Mexico somehow make those living in the area more susceptible to illness. It's too soon to tell, but in the weeks to come, geographic and sociological factors may prove that Americans are less hospitable hosts."

The American Occupational Therapy Association's Nominating Comittee recently announced the results for the 2009 AOTA elections. The following are the results:


General Election

 Florence Clark, President-Elect

Virginia "Ginny" Stoffel, Vice President

Thomas Fisher, Board Director

Coralie "Corky" Glantz, Board Director

Jyothi Gupta, Commission on Education Chairperson-Elect

 Barbara Hemphill, Ethics Commission Chairperson-Elect

 Michele Luther-Krug, OTA Representative to the RA

Special Interest Sections

 Tara Glennon, AMSIS Chair

 Leslie Jackson, EISSIS Chair

Missi Zahoransky, HCHSIS Chair

Tina Champagne, MHSIS Chair

Assembly of Student Delegates

 Ryan Morgan, Chairperson

 Kayla Chambers, OTA Vice Chairperson

Janelle Murray, OT Vice Chairperson

Stephen Barbour, Secretary

 Elizabeth Hayes, Communications & Advocacy Chairperson

 Jennifer Cruz, Representative to the Commission on Practice

On Oct. 7 the Pennsylvania House passed HB 1177, amending an old insurance act to add several professions, including occupational therapy, to a list of providers who were now approved to participate in Blue Shield (now called Highmark) coverage. Pennsylvania Gov. Ed Rendell is expected to sign the bill shortly.

POTA legal counsel Michael Allen told ADVANCE the bill rode the coattails of the state's hard-hitting insurance reform law in autism coverage that Rendell signed July 9. That law names occupational therapists as qualified providers in autism treatment.

Considered by some as the "strongest autism insurance reform bill in the country," it virtually orders Pennsylvania insurers to accept autism claims on the same basis that they do others, and adding a claims dispute process to the law that demands that claims be paid while any dispute is in process.

The move came after a great deal of highly visible advocacy from parents of ASD children as well as their providers and interested supporters. An investigation into how much adding such coverage would cost showed that increases due to the reform would be "modest, relative to ongoing insurance cost increases; estimated cost offsets for families and the commonwealth; and better results for children and youth with ASD."

Allen said that up that point, changing the Blue Shield regulations had been an uphill battle for almost eight years. POTA has been working on it steadily for the past four years.

Pennsylvania was the first state in the country to license the Blue Cross/Blue Shield insurance companies in the earlier years of the 20^th Century. The contract named the professionals whose participation should be covered, and it included both physical therapy and speech therapy, but not occupational therapy, which many considered to be part of physical therapy.

So Keystone State OTs practicing as independent contractors have never had the right to reimbursement from the original Blue Shield contact. But over the past 20 years, Blue Shield has created other insurance constructs such as HMOs, PPOs and point-of-service policies in which OTs have participated.

In 2000, however, Highmark consolidated Blue Shield and built the constructs of its new service corporation around the old law.

"Suddenly, OT claims were being denied, and no one knew why," Allen said. At first the company tried asking OTs to bill under PT, which of course they could not and would not want to do. Other ideas on how to get around the law did not work, and Highmark did not support a change in the original contract.

Now, Allen believes, Highmark will probably start to build networks of occupational therapy providers to help it meet the standards of the new autism law.

In a special e-meeting, the online Representative Assembly voted to approve "societal statements" on post-traumatic stress disorder and "livable" communities that AOTA will use to educate legislators and third-party payers about occupational therapy's role in community health and wellness.

The assembly met online September 3 to September 15 to discuss and vote on the statements, drafted by practitioners with expertise in these two areas and finalized by the RA Coordinating Council (RACC).

It's unusual for the full assembly to meet online before its annual fall meeting, which will begin next month, but Vice Speaker Deborah Murphy-Fischer told her colleagues that the association wanted to use the statements "as soon as possible."

The Societal Statement on Combat-Related Posttraumatic Stress (PTSD) was penned by three military occupational therapists: Robinette Amaker, COL, SP, PhD, CHT, FAOTA; Yvette Woods, LTC, SP, PhD, OTR/L; and Steven M. Gerardi, LTC, SP, MS, OTR/L, CHT, at the request of the RACC.

 Noting statistics from the mental health industry that say 150,000 military men and women now home from Iraq and Afghanistan currently suffer from PTSD, the statement notes its symptoms and the cost to society of not addressing them: the ongoing inability of these survivors to deal successfully with their personal and vocational lives.

The statement  adds, "The overarching goal of occupational therapy for military personnel coping with combat-related PTSD is to use strategies to help them recover, compensate or adapt so they can re-engage with activities that are necessary for their daily life...Because of their knowledge and skills in addressing the physical, cognitive and psychosocial factors associated with combat-related PTSD, occupational therapists and occupational therapy assistants bring broad expertise to help personnel identify the barriers that are limiting their recovery and participation in meaningful activities. AOTA supports recognition of and intervention services for military personnel coping with combat-related PTSD, including research, advocacy, education and resource allocation consistent with professional standards and ethics."

The Societal Statement on Livable Communities, written by Lisa Ann Fagan, MS, OTR/L, chair of the Home and Community Health SIS, and Cheri Cabrera, OTR, advocates for community planning that addresses the issues of gray America and people who are handicapped in physical or cognitive abilities.

The statement emphasizes the profession's commitment to equal opportunity as being in line with a 2007 United Nations mandate that says people should have the right to choose their places of residence and have equal access to support services that promote full participation in community living.

A "livable" community, as defined by the AARP in 2005, "is one that has affordable and appropriate housing, supportive community features and services and adequate mobility options, which together facilitate personal independence and engagement of the residents in civic and social life."

The statement notes that "occupational therapy practitioners plan and implement strategies that promote their client's participation in community life by creating opportunities to establish, restore or maintain the skills used in activities of daily living and other meaningful occupations, and by supporting others who are advocating for their own and others' rights."

 OT personnel advocate for such things as environmental modifications to remove barriers from homes and communities, and for supportive community services "including transportation, personal care, health care, education, employment and other services." The statement also says OT promotes public health through effective partnerships with individuals, private organizations and government agencies.

Members were able to audit the online meeting and to comment to their representatives on ongoing discussion of the topics.

To read the full text of the statements, go to http://www.aota.org/Govern/RA/EMeeting.aspx

─ E.J. Brown

The Centers for Medicare & Medicaid Services (CMS) announced on September 3 that physicians and certain licensed health care professionals who supply durable medical equipment, prosthetics, orthotics, and supplies (DMEPOS) no longer need to become accredited prior to obtaining a supplier number from the National Supplier Clearinghouse (NSC). The exemption includes occupational therapists in private practice.

Eligible professionals are exempt from meeting the September 30, 2009 accreditation deadline unless CMS determines that the quality standards are specifically designed to apply to such professionals.

CMS advices any occupational therapists who have been denied an NSC supplier number due to a failure to meet the DMEPOS accreditation requirements to resubmit applications to NSC, which has been notified that certain DMEPOS suppliers are now exempt. CMS fully expects NSC to be properly processing supplier applications by September 8, 2008.

CMS will issue a fact sheet and FAQ document on its Web site by Monday, September 8, 2008.

For more information from AOTA on the ruling, click here.