ASAP
A Weekly Publication Of HCA Home Care Association of New York State
Legislative Issues Public Policy
News
Volume 20, No. 2 January 16, 2015
HCA Gears Up for Next Week’s State Budget Presentation, Legislative Advocacy on January 26 The state budget and legislative advocacy season are heating up in the coming week, as Governor Cuomo is slated to present both his state of the state address and his proposed 2015-16 fiscal plan, including budget bills, during a speech on Wednesday, January 21. In the lead-up to next week’s budget presentation – and HCA’s State Advocacy Day the following week, on January 26 – HCA has been working, based on priorities of our Board and members, to develop a set of See BUDGET p. 3
Court Vacates Companionship Exemption Rule for Home Care A federal court on Wednesday ruled that the U.S. Department of Labor’s (DOL) changes to the companionship exemption for home care violated the law. This week’s landmark decision effectively invalidates DOL’s rule on the companionship exemption for home care, which was originally slated to go into effect on January 1 but was temporarily suspended under a restraining order on December 31. DOL has not indicated whether it will appeal the decision, though the federal government has vowed to do so in the past. An appeal, if pursued, would go before the U.S. Court of Appeals.
Inside ASAP
HCA Gears Up for State Budget, Advocacy on Jan. 26.....................1 Court Vacates Companionship Exemption Rule for Home Care.......1 HCA Submits Comments on VOs and Home Health Providers........4 Home Health RAC Delayed.................................................................5 2013 LHCSA Statistical Report Due January 30..................................5 Essential Personnel Bill Geared for Legislative Reprise....................6 HCA Quality Committee to Beta Test HCA Risk Tool........................7 Regulatory Realignment, Streamlining Efforts Continue..................8 HRA Reorganization Announced.......................................................8 DSRIP Update......................................................................................9 DAL Revises Home Care, Hospice Complaint Procedures..............10 Bill Intros/Reintroductions for the 2015 Legislative Session...........11 State Releases October Global Cap Spending Report...................12 Reports: CMS Administrator Tavenner to Step Down.....................13 New Administrative Appointments Announced.............................14 HCC Forum Discusses HRA Contracts, QIVAPP, FLSA Changes.....14 Duke Population Care Coordinator Program Returns to NY...........15 CMS Issues Memo to State Surveyors on Qualifying Services..........15 CMS Issues Guidance on New OASIS Submission System....................16 NGS Updates...........................................................................17 Publications....................................................................18
See COURT p. 2 Monday, January 19, is Martin Luther King, Jr. Day. HCA’s offices will be closed. Our offices will reopen on Tuesday, January 20.
Helping New Yorkers Feel Right At Home
ASAP – a publication of the Home Care Association of New York State COURT continued from p. 1 The National Association for Home Care and Hospice (NAHC) filed suit in the case, targeting the DOL rule that would have blocked thirdparty employers (including most home care agencies) from claiming the companionship exemption for aide services. In New York State, DOL’s rule would have changed the way providers had to calculate and pay overtime for most aide services. Currently, New York’s rules require providers to calculate and pay overtime based on time-and-a-half of minimum wage, not time-and-a-half of the worker’s actual wage (as the DOL rule would have required). Wednesday’s ruling is the third court action in recent weeks on this case. On December 31, on the eve of the rule’s intended implementation date, the court issued a temporary restraining order blocking DOL from enforcing the new definitions
Volume 20, No. 2 January 16, 2015
for “companionship” and “live-in” care. The restraining order was set to expire on January 15, when Judge Richard Leon ruled that DOL’s policy violated the law. Judge Leon’s decision can be read at https:// ecf.dcd.uscourts.gov/cgi-bin/ show_public_doc?2014cv0967-32. HCA supports wage and overtime policies which provide for home care workforce stability, retention and quality. Regrettably, recent federal rules, such as the U.S. Centers for Medicare and Medicaid Services’ unprecedented rebasing cuts, are at direct odds with such goals. Additionally, DOL’s rule would have: circumvented established legal precedents and Congressional intent with respect to the companionship definitions; resulted in a disincentive for overtime; disrupted continuity-of-care for patients; and failed to provide reimbursement support for the new labor expenses brought on by the rule. HCA will keep the membership apprised of further updates and analysis as we learn more about the decision and DOL’s response.
ASAP is a weekly publication of the Home Care Association of New York State (HCA). Unless otherwise noted, all articles appearing in ASAP are the property of the Home Care Association of New York State. Reuse of any content within this newsletter requires permission from HCA.
President: Editor:
Joanne Cunningham, jcunningham@hcanys.org Roger L. Noyes, Director of Communications, rnoyes@hcanys.org Al Cardillo, Executive Vice President, Policy & Programs, acardillo@hcanys.org Patrick Conole, Vice President, Finance & Management, pconole@hcanys.org Andrew Koski, Vice President, Program Policy and Services, akoski@hcanys.org Laura Constable, Senior Director, Membership & Operations, lconstable@hcanys.org Lynda Schoonbeek, Director of Education, lschoonbeek@hcanys.org Mercedes Teague, Finance Manager, mteague@hcanys.org Jenny Kerbein, Director of Governance and Special Projects, jkerbein@hcanys.org Billi Hoen, Manager, Meeting and Events, bhoen@hcanys.org Teresa Brown, Administrative Assistant, tbrown@hcanys.org 388 Broadway, 4th Floor, Albany, NY 12207 Tele: 518-426-8764; Fax: 518-426-8788; Website www.hcanys.org
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BUDGET from p. 1 proactive budget and legislative proposals all under the banner of “Driving Health Care Improvement and Savings Through Home Care.” Our proposals encompass HCA priorities in the broad areas of infrastructure development, financing, regulatory relief/flexibility, insurance coverage and more. HCA this week also finalized our analysis of data submitted by members as part of our annual financial condition survey, which reveals that the current policy, programmatic, regulatory and fiscal environment continues to impose major financial pressure on the home care industry, compromising the viability of the provider infrastructure needed to support state policy goals. We thank the large number of members who contributed to this important survey, which provides us with the most up-to-date data on system trends, financial experiences and the general state of the home care system. HCA’s 2015 advocacy agenda and a report outlining the results of our financial survey will be published and shared with the membership very soon, in advance of our January 26 State Advocacy Day, so please stay tuned for these important resources. Distinct from past State Advocacy Day programs, HCA, this year, has planned a more streamlined approach, engaging our Board of Directors in strategic meetings with key legislative leaders and Executive staff in Albany on January 26. In addition to our January 26 event, we will be asking all members to engage in local-district advocacy to reach lawmakers about legislative priorities; so please stay tuned for our resource documents and message points, coming very soon. We will also provide the membership with our analysis of the Governor’s budget presentation, set for release next week, especially any areas directly affecting home care. The Governor has indicated that this year’s budget is expected to carry a $5 billion windfall; although, state officials have been quick to caution and clarify that the funds are not a surplus in the traditional sense but a nonroutine sum collected from recent legal settlements with the financial industry. In remarks to reporters this week, Comptroller Tom DiNapoli specifically warned: “It’s really more a windfall … It’s unexpected money that comes out of the settlements. It is not a surplus in a sense that we are going through the budget year and we have money that wasn’t expended or the traditional revenues have produced more than was anticipated.” Thus, he noted, the money should not be used for long-term priorities – presumably, such as health care or education. Discussions at the Capitol suggested that the money may be directed towards defined business investments, taxpayer cuts, and infrastructure projects, including costs related to construction of a replacement for the Tappan Zee Bridge. HCA will provide the membership with updates and analysis as soon as possible next week and as we head into our State Advocacy Day on January 26. Please stay tuned. For more information, please contact a member of HCA’s Policy staff.
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HCA Submits Comments on VOs and Home Health Providers This week, HCA submitted comments to the Office of Medicaid Inspector General (OMIG) about its revised policies related to home health providers, pre-claim review, and use of verification organizations (VOs). Under current law, Certified Home Health Agencies, Long Term Home Health Care Programs, and personal care providers with total Medicaid reimbursements exceeding $15 million in a calendar year must utilize a verification organization to verify claims prior to submission to the state Department of Health (DOH). Last year’s final state budget: expanded the $15 million threshold to include claims made from the above providers to managed care organizations; required pre-claim review prior to submission of a claim or encounter to a managed care provider for providers that meet this threshold; and required DOH and OMIG to jointly develop requirements for pre-claim review. Subsequently, OMIG revised its guidelines and sought HCA and other provider association feedback. In our comments we raised the following issues: •
Providers already experience long delays in reimbursement and associated cash-flow problems in managed care payments; the new requirement (which imposes an added step to an already negotiated and non-feefor-service reimbursement model) risks further delays. We ask OMIG to include provisions preventing further delays and cash-flow problems, perhaps by requiring turnaround time limits for VO claims review.
•
Obtaining timely authorizations from managed care plans is already a major issue faced by home care providers, who are further concerned that electronic visit verification may deny claims where providers have verbal, but not written, authorizations. HCA sought OMIG’s consideration in addressing this issue.
•
Other states – including (we have been told) Illinois, Texas, Tennessee and Florida, among others – require but fund the cost of the VO process. New York State does not; thus, the expansion of the VO requirement represents an additional unfunded mandate for home care providers who currently are facing serious negative margins and fiscal challenges. New York State should fund this requirement either directly or through adjusted managed care plan premiums.
•
Applying electronic visit verification to professional services (nursing, therapies) is very different from application to personal care aide services (as this model was taken from the original Human Resources Administration program which provided only personal care, and not professional services). Nursing and therapies are billed by the visit, not the hour, and are dynamic in response to patients’ needs. We cannot see how OMIG plans to conduct a program for these professional visits analogous to the program for personal care aides, and we request information on how OMIG plans to do so.
•
Electronic verification conducted for home care fee-for-service is based on an entirely different structure and relationship between provider and state payment than under managed care. The latter is based on the payment/assurance relationship between the state and the managed care plan, and the plan in turn has responsibility for its contracted services. Assurances related to service delivery and billing by providers under managed care should remain between the providers and the plans as part of negotiated provisions 4
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of their contracts; assurances required by the plans for the state’s payment to them should be between plans and the state. •
•
Given the changing nature of Medicaid payment – i.e., the shift in payments from fee-for-service and “volume based payment” to “value based payment,” including subcapitation and other methods – on what basis would the VO measure “per-service” billing when the system has moved to a completely different basis for billing and payment? What instrument does OMIG plan to use to determine how much reimbursement home care providers received from managed care plans and for which services provided, especially when per-service reimbursement is replaced with other reimbursement methods?
HCA will keep the membership informed of further developments on this issue, including any response from OMIG on our comments. For more information, please contact the HCA Policy staff.
Home Health RAC Delayed The U.S. Centers for Medicare and Medicaid Services (CMS) has announced a delay in “commencement of work” under the national Recovery Audit Contractor (RAC) for home health and durable medical equipment due to a challenge over the contract award. CMS had earlier announced that Connolly, LLC had been awarded this RAC contract (see last week’s ASAP). However, Performant Recovery, which holds one of the current RAC contracts, has protested CMS’s decision to award the contract to Connolly. CMS cannot move forward with utilizing Connolly for RAC audits until the challenge is resolved. In August of 2014, CMS posted the following: “Due to the continued delay in awarding new Recovery Auditor contracts, CMS is initiating contract modifications to the current Recovery Auditor contracts to allow the Recovery Auditors to restart some reviews. Most reviews will be done on an automated basis, but a limited number will be complex reviews of topics selected by CMS.” This limited review activity is expected to continue until the protest has been resolved. CMS will post updates, as appropriate, at http://www.cms.gov/ResearchStatistics-Data-and-Systems/Monitoring-Programs/Medicare-FFSCompliance-Programs/Recovery-Audit-Program/Recent_Updates.html. HCA will keep members informed of any new developments with the RAC contract. 5
2013 LHCSA Statistical Report Due January 30 The 2013 Licensed Home Care Services Agency (LHCSA) Statistical Report is due on Friday, January 30. LHCSAs providing services in Assisted Living Programs (ALPs) must submit a Statistical Report for their non-ALP patients and a separate Statistical Report for their ALP patients. The state Department of Health (DOH) encourages providers to submit the reports earlier than January 30, as it anticipates system delays and longer wait times for support if providers wait until the due date. All reports must be submitted electronically through the Health Commerce System (HCS). Questions should be directed to HCStatRpts@health.state.ny.us.
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Essential Personnel Bill Geared for Legislative Reprise, among Other Emergency Preparedness Developments In the wake of Governor Cuomo’s veto of critical emergency preparedness legislation for home care and hospice, HCA and legislative sponsors held discussions this week aimed at prompt reintroduction and reconsideration of the legislation. HCA worked on and submitted some additional language to bolster the statement of the bill’s purpose. The legislation, S.4719-B/A.6538-B, conceived by HCA and sponsored by Senator Andrew Lanza and Assemblyman Michael Cusick, unanimously passed the Assembly and Senate in June, but it was vetoed in December by the Governor, purportedly as “an unfunded mandate on localities” (a misinterpretation of the provisions). The bill would have provided for home care and hospice input into the local emergency management planning process, and included home care and hospice personnel, as well as physicians, nurses and other key health staff, in the category of “essential personnel” (like emergency services personnel, firefighters, law enforcement, etc.) who may be granted access to patients in geographically restricted zones or during curfews in declared emergencies. Indications are that the veto may have been based on a misinterpretation of its provisions, which the HCAadded language aims to ameliorate. When reintroduced, the bill will be assigned new Senate and Assembly numbers for the 2015 session. HCA will urge prompt repassage and signature, and will keep the home care and hospice community closely apprised of the bill’s status, along with steps you can take to communicate the need for approval. HCA appreciates Assemblyman Cusick’s and Senator Lanza’s continuing leadership on this bill, and we also look forward to working with the Governor’s office to secure enactment of this vital emergency preparedness measure. HCA, DOH progress on 2015 initiatives HCA also met and worked this week with state Department of Health (DOH) officials and colleagues at the New York State Association of Health Care Providers to continue to progress on a series of collaborative emergency preparedness initiatives. These included: •
Development of a home care education booklet for individuals and entities at the state, regional and/or local levels involved in the emergency preparedness to learn about the basic home care structure, home care emergency response needs and issues, and the associations’ role in assisting preparedness and response.
•
Development of an education and reference booklet for providers and partners, including health plans, to assist with “situational awareness” in emergencies.
•
2015 plans for implementation of the Transportation Assistance Levels (TALs) initiative in home care. TALs implementation is just underway for facilities, and DOH recently held a series of webinars to
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provide guidance to these institutional providers. A similar effort is planned for home care once a target date for implementation has been decided. TALs refer to categories (three levels) defining the needs of patients for transport in the event of planned evacuations. •
Emergency drills and exercises for home care and other providers planned for 2015. On this point, HCA stresses the importance of all providers updating their Health Commerce System (HCS) records to ensure essential communication in emergencies. All home care and hospice providers should review their current HCS information to ensure these key contacts are updated and listed for each agency location.
•
Coordination of emergency preparedness and response protocols and actions between providers and managed care plans.
HCA will be keeping the provider and health plan community apprised of the developments and coming resources for these key areas. As always, HCA invites ongoing provider input and recommendations on areas of emergency preparedness need, and the sharing of after-action reports. For further information, please contact Al Cardillo at acardillo@hcanys.org.
HCA Quality Committee to Beta Test HCA Risk Tool Update on new tool unveiled at November HCA Quality Symposium The HCA Quality Committee will shortly be conducting a beta test of the Committee’s newly developed “Quality Risk Tool.” When fully implemented, this new resource stands to be a major, formative initiative in health care quality. This tool was developed through the leadership of HCA Board Member Laurie Neander, President and CEO of At Home Care, and the full HCA Quality Committee. It provides an instrument and process to monitor and identify areas of “quality risk,” and to guide providers as they proactively implement agency remedies and improvements. The tool can also be viewed as a type of “hazards and vulnerabilities” assessment for quality, aligning with priority areas relevant to: providers, managed care plans, integrated models (e.g., FIDA, DSRIP, ACOs, hospital partners, etc.), OMIG compliance measures, and others. As such, it would serve as an internal tool for continuous monitoring and remedy, a foundation for proactive quality enhancement, and an asset in the current managed care/value based marketplace. It also reinforces and further marks HCA members’ overall commitment to quality. The draft “Risk Tool” was unveiled and reviewed at HCA’s November 19 Quality Forum where it was enthusiastically received, with many requests for prompt statewide implementation. HCA is currently scheduling the beta test with a sample group of providers and will incorporate the results from the test into the next – possibly final – iteration of the tool. HCA is also exploring options for automation and integration within agency systems. HCA will keep members apprised of the status of this important initiative. For further information, please contact Al Cardillo at acardillo@hcanys.org. 7
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Managed Care-Home Care Regulatory Realignment, Streamlining Efforts Continue This week, HCA, association colleagues and provider and health plan representatives conferenced together again to further progress on areas of possible realignment, clarity and streamlining of managed care-home care regulations. The association-led initiative has been working from a matrix laid out by the associations to better delineate requirements, procedures and recommendations for streamlining and flexibility for the managed care-home care model. The associations’ goal is to feed the results to the formal State Workgroup on Home and Community-based Care created by the Legislature and Governor to address regulatory issues, including regulatory excess and incompatibility under the new model. At this week’s meeting, several areas were keyed in for initial presentation to the state workgroup originally planned for yesterday. While the meeting was ultimately postponed, the associations and provider/health plan members will continue to progress on tangible improvements to bring to the workgroup. An additional focus/concern is that the kinds of regulatory structures and fixes identified by stakeholders will need ongoing redress as the state proceeds to implement new policy changes and models of care (e.g., the January 1 implementation of the new Fully Integrated Duals Advantage). HCA is preparing to emphasize the need for regulatory relief and the prompt implementation of workgroup proposals in our 2015 state legislative and budget recommendations. (See related p. 1 story.) HCA appreciates the efforts of our participating providers and health plans, and our collaboration with the joint associations, in this work to better adapt the regulatory structure to the system’s needs. For further information, please contact Al Cardillo at acardillo@hcanys.org.
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HRA Reorganization Announced in NYC The New York City Human Resources Administration (HRA) has announced a reorganization of its Home Care Services Program (HCSP). On December 19, HCSP transitioned from the Medical Insurance Community Services Administration (MICSA) to a new division called the Office of Special Services. The Office of Special Services includes Adult Protective Services, Customized Assistance Services, HIV/AIDS Services Administration, Crisis and Disaster Management. While this change should be transparent to home care contractors, the change has also resulted in the transition of the Complaint Tracking Unit and Home Care Quality Assurance to the HCSP Home Care Contracts. HCA has been working closely with Arnold Ng, HRA’s Deputy Commissioner, Special Services-Home Care Services Program.
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DSRIP Update This week, the state Department of Health (DOH) provided the following updates to the Delivery System Reform Incentive Payment (DSRIP) program. Entities approved for safety-net status as lead entities DOH has announced that the U.S. Centers for and Medicaid Services (CMS) approved nine entities to participate in DSRIP as safety net providers and as lead entities in a performing provider system (PPS). The approved entities include: • • • • • • • • •
Southern Tier Rural Integrated PPS Bronx Lebanon PPS Mount Sinai PPS Central New York DSRIP PPS, Inc. Fingerlakes PPS Ellis Hospital (New Corporation) Advocate Community Providers, Inc. Richmond University Medical Center & Staten Island University (New Corporation) SB Clinical Network IPA, LLC
The CMS approval letter is at http://www.health.ny.gov/health_care/medicaid/redesign/ dsrip_safety_net_definition.htm. DOH is continuing to work with CMS to make determinations on the remaining safety net appeals. DOH has posted 25 submitted PPS applications for a 30-day comment period. They are at: http:// www.health.ny.gov/health_care/medicaid/redesign/dsrip/pps_applications/. Questions related to the Vital Access Provider Exception or DSRIP safety net process can be directed to BVAPR@health.ny.gov. All other questions can be directed to DSRIP@health.ny.gov. Project approval and oversight panel The DSRIP Project Approval and Oversight Panel (PAOP) met this week. The agenda and handouts from the Panel meeting, along with a list of Panel members, are at: http://www.health.ny.gov/health_care/medicaid/ redesign/dsrip/project_approval_oversight_panel.htm. The meeting consisted of an overview of the PAOP responsibilities; general discussion on DSRIP; DSRIP Project Plan components and review process; and the role, tasks, and scoring process of the Independent Assessor, Public Consulting Group (PCG). Panel members will have three main responsibilities for DSRIP: •
Conduct reviews and make recommendations on the scores of the subjective components of DSRIP Project Plans. Continued on next page 9
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Continued from p. 9 • Assist the state with ongoing oversight of DSRIP projects. •
Conduct reviews and make recommendations pertaining to the $1.2 billion in state funding approved for capital projects to fund DSRIP projects.
PAOP will be engaged for the five-year waiver period, meeting biannually following its initial work in late February on PCG DSRIP Project Plan recommendations. The panel will also convene during DSRIP year three midpoints and make recommendations on changes to PPS networks and DSRIP projects. A review and scoring of the PPS applications will be completed by the Independent Assessor; a recommendation and summary will be completed by PCG, provided to the PAOP, and posted by about February 2. PAOP members will convene again in February for a presentation of recommended DSRIP Project Plan application scores by the Independent Assessor for each PPS and DSRIP project. PAOP members will vote to accept, accept with modification, or reject the IA’s scores. PAOP recommendations will be reviewed by the DOH Commissioner and then forwarded to CMS for approval by April 1, 2015. COPA and ACO The Frequently Asked Questions (FAQs) for Certificate of Public Advantage (COPA) and Accountable Care Organization (ACO) applications submitted by PPS Lead Applicants in conjunction with DSRIP Project Plan applications have been updated. New questions 24 and 25 have been added to the COPA FAQs. Please see: https://www.health.ny.gov/ health_care/medicaid/redesign/copa. The opening paragraph and Questions 1 and 11 on the ACO FAQs have been revised to reflect that a notice of adoption was filed in the State Register for the ACO regulations (see http://docs.dos.ny.gov/info/register/ 2014/dec31/toc.html). The regulations took effect December 31, 2014, and are available at http:// www.health.ny.gov/regulations/recently_adopted/docs/2014-12-31_accountable_care_organizations.pdf. The FAQs will be posted at https://www.health.ny.gov/health_care/medicaid/redesign/aco. As previously covered in ASAP, COPA and ACO applications submitted by PPS Lead Applicants on or before December 22, 2014, will be notified of DOH’s determination by April 1, 2015. COPA and ACO applications submitted by PPS Lead Applicants on or before February 1, 2015, should expect to be notified of DOH’s determination by June 30, 2015. Applications will be accepted on a rolling basis after February 1, 2015, but notification may not be made until after June 30, 2015.
DAL Revises Home Care, Hospice Complaint Procedures The state Department of Health (DOH) this week issued a Dear Administrator Letter (DAL) to inform Certified Home Health Agencies (CHHAs), Long Term Home Health Care Programs (LTHHCPs), and Hospices of changes in the Department’s complaint procedures for federally certified providers. These changes do not apply to Licensed Home Care Services Agencies (LHCSAs). DOH is revising the complaint procedures to make them consistent with revisions and updates made by the federal government in the State Operations Manual (SOM) Chapter 5 – Complaint Procedures. (See: 10
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http://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/ Downloads/Survey-and-Cert-Letter-14-35.pdf ). The changes primarily include new categories of complaint allegations and procedures in which complaints will be handled by DOH based on the category/priority level of the complaint. The complaint categories for federal providers include the following: Immediate Jeopardy (IJ), Non IJ-High, Non IJ-Medium and Non IJ-Low. DOH’s DAL notes that the Administrative Review/Offsite (also known as the agency self-investigation report) is no longer a complaint category for federally certified providers. The DAL provides specific definitions for how the various complaint categories would apply and the timetable for onsite investigations in certain cases. Complaints categorized as IJ or Non IJ-High will be investigated by DOH subject to CMS approval for those agencies with “Deemed Status” by a CMS approved accrediting organization (AO). All complaints categorized at a lower priority level (Non IJ-Medium and Non IJ-Low) will not be investigated by the Department. In all cases, the complainant will be issued an acknowledgment letter by DOH and provided contact information for the applicable accrediting organization, should the individual wish to pursue a complaint with the AO. DOH’s DAL also reminds providers that its complaint procedures prohibit the disclosure of the name of the complainant to providers. In addition, the Department will immediately investigate any allegations that an agency has violated the rights of a patient as a result of a complaint made by or on behalf of the patient, and deficiencies will be cited as appropriate. The DAL (DHCBS 15-01) can be obtained on the Health Commerce System (HCS) at: https:// commerce.health.state.ny.us/hcs/index.html. HCA urges members to review the DAL and ensure that your quality assurance teams are aware of the new definitions and DOH procedures. For further information, contact the HCA Policy staff.
Bill Introductions/Reintroductions for the 2015 State Legislative Session A host of bills were introduced this week by members of the State Legislature for the commencement of the 2015 State Legislative Session. Many of these bills are reintroductions of past legislation; others are newly introduced. A number of the bills have a direct or indirect impact on home care, and some (as indicated below) are HCA-authored from 2014 or previous sessions. HCA will have more in-depth reviews of these bills, as well as any additional and significant incoming bills, in subsequent editions of ASAP or other HCA communications. Among the new introductions/reintroductions are: •
Hospital-Homecare-Physician Collaboration Program – S.1110 (Hannon)/A.2011 (Gunther): A reintroduced bill co-authored with HCA and the Iroquois Healthcare Alliance (upstate regional hospital association).
•
Regulatory Waiver for Flexibility, Efficiency for Managed Care-Home Care Model – A.2289 (Gottfried): A reintroduced bill developed in conjunction with HCA to address regulatory concerns, needs for home care providers and managed care plans. Continued on next page 11
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Continued from p. 11 •
HEAL NY Grants for Home Care Agencies – A.1847 (Gunther): A reintroduced bill authored with HCA.
•
Hospice Residence Capacity Expansion (NYC only) – A.1311 (Rodriguez)
•
CARE Act “Caregiver Advise, Record and Enable Act” – A.1323 (Rosenthal)/S.676 (Hannon)
•
Biennial CPR Training for Home Care Service Workers – A.1359 (Rosenthal)
•
Empire State Professional Nursing Scholarship Program and Grants for Education – A.1546 (Pretlow)
•
Adds Elderly Persons to Disaster Preparedness Registries and Creates a State Emergency Assistance Database – A.1741 (Tedisco)
•
Establishes the Pandemic Preparedness Task Force – S.1803 (LaValle)
•
Surrogate Decision-making Law Amendments and Palliative Care Bills – A.2150 (Gottfried), S.1153 (Hannon); A.2211(Gottfried), S.311 (Espillat); A.2230 (Gottfried)
As referenced in a related story p. 6 story on emergency preparedness, HCA is currently working with Assemblyman Michael Cusick and Senator Andrew Lanza on the reintroduction of HCA’s “Essential Personnel” bill for home care and hospice, as well as on new legislation for additional 2015 home care legislative and budget priorities. HCA will keep the membership closely apprised of the developments with these and all significant legislative initiatives affecting the home care community.
State Releases October Medicaid Global Cap Spending Report Home care and personal care spending slightly above projections The state Department of Health (DOH) has issued its October 2014 Medicaid Global Spending Cap report. It shows spending to be $5 million less than projected for the current fiscal year through October. (The current state fiscal year began on April 1 and ends March 31.) DOH’s estimated spending amount for this six-month period was $9.878 billion versus an actual spending amount of $9.873 billion. The cap for the entire fiscal year is $17 billion. DOH’s report is at: http://www.health.ny.gov/health_care/medicaid/regulations/global_cap/monthly/ sfy_2014-2015/docs/october_2014_report.pdf. For DOH’s reporting purposes, home care services and personal care services are lumped into the category labelled “Other Long Term Care.” According to the report, that category was $1 million above projections for
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the six-month period ending October 31 – a difference between projected spending of $413 million and actual spending of $414 million. Medicaid Managed Care was $4 million under the projection of $6.977 billion for this period, according to the report. More specifically: •
Mainstream Managed Care was $14 million, or 4.2 percent, over (or above) projections.
•
Long Term Managed Care was $18 million under projections through October. Total enrollment in the program is approximately 3.7 percent below expected levels (by a difference of 4,900 recipients).
In its prior Global Spending Cap report, DOH established a cap of $574 million in 2014-15 for “Other Long Term Care.” However, in the April and May Global Cap reports, DOH had earlier estimated that “Other Long Term Care” services would be $605 million in 2014-15. HCA has yet to receive an explanation from DOH as to why this estimate was reduced by $29 million. HCA will take this issue up with DOH during our next home health reimbursement meeting (next week) as the state releases its budget preparations for the coming state fiscal year. DOH’s report also provides other data on Medicaid enrollment changes, accounts receivable data, enrollment in the state’s health care exchange, and various state Medicaid savings initiatives. For further information, contact Patrick Conole at (518) 810-0661 or pconole@hcanys.org.
Reports: CMS Administrator Tavenner to Step Down Various media reported today that the Administrator of the U.S. Centers for Medicare and Medicaid Services (CMS), Marilyn Tavenner, is stepping down from her post in February. According to the reports, Ms. Tavenner will be replaced by Andy Slavitt, an executive from UnitedHealth Group. Mr. Slavitt would need Senate confirmation. In the meantime, he will reportedly serve in an Interim capacity. Ms. Tavenner, a nurse and former Virginia state Secretary of Health, served five years at the head of CMS. She followed Dr. Donald Berwick who didn’t receive Senate Confirmation and served his entire tenure at CMS in an interim capacity. HCA has regularly communicated with Ms. Tavenner on several key issues during her tenure including our efforts to gain: a successor solution to the expired Third Party Liability (TPL) Demonstration Project, a fix to the face-to-face mandate, as well as redress of CMS’s home health rebasing cuts and other payment, policy and programmatic concerns. HCA thanks Ms. Tavenner for her accessibility and reception to our advocacy, including her agency’s work to reformulate the F2F mandate and, even more recently, her quick response to
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HCA’s request for an extended comment period on proposed changes to the Medicare home health Conditions of Participation (CoPs). With so many home care-related issues and needs still in development phases at CMS, HCA looks forward to continuing our strong working relationship with CMS officials in support of New York’s home care system. For more information, please contact the HCA Policy staff.
New Administrative Appointments Announced This week, the Governor announced some important appointments. These included the Commissioner of the state Department of Health (DOH), the Executive Deputy Commissioner at DOH, and the Medicaid Inspector General. Dr. Howard Zucker was appointed to serve as DOH Commissioner, subject to Senate confirmation. Previously, he served as Acting Commissioner as well as First Deputy Commissioner. Prior to that, he was a professor of Clinical Anesthesiology at Albert Einstein College of Medicine of Yeshiva University and a pediatric cardiac anesthesiologist at Montefiore Medical Center in the Bronx. He was also an adjunct professor at Georgetown University Law School, where he taught biosecurity law. Dr. Zucker has a B.S. from McGill University, an M.D. from George Washington University, a J.D. from Fordham University Law School, an LL.M from Columbia Law School, and a postgraduate diploma in global health policy from the London School of Hygiene and Tropical Medicine. Sally Dreslin, M.S., R.N. has been appointed Executive Deputy Commissioner at DOH, having previously served as Assistant Secretary for Health to the Governor. Previously, she served as the Associate Director for Policy at the New York State Nurses Association, where she advocated for New York State’s nurses on topics including state health policy, budget provisions and legislation relating to health care delivery, professional practice, nursing education, and patient care. She also has an extensive background as an educator, teaching nursing at institutions such as Albany Medical Center, St. Peter’s Hospital, and Maria College. She has a bachelor’s degree in nursing from the Columbia University School of Nursing, a master’s degree in social/medical anthropology from the University of Texas at Austin, and a master’s degree in nursing education. Dennis Rosen was appointed to serve as Medicaid Inspector General, subject to Senate confirmation. Mr. Rosen is currently Chairman of the New York State Liquor Authority, a position he has held since 2009. Prior to that, he was an Assistant Attorney General in the Real Estate Financing Bureau (1982 to 1983) and the Consumer Frauds Bureau (1983 to 2009) of the state Attorney General’s Office. Previously, he was an attorney with the New York City Legal Aid Society’s Juvenile Rights and Criminal Defense divisions. Mr. Rosen has a B.A. from Brooklyn College and a J.D. from Harvard Law School. More information is at http://www.governor.ny.gov/news.
HCC Forum Discusses HRA Contracts, QIVAPP, FLSA Changes and More This week, HCA held a Forum for its Licensed Home Care Services Agencies who are former members of the Home Care Council (HCC). Arnold Ng, Deputy Commissioner, Special Services-Home Care Services Program for the New York City Human Resources Administration (HRA), gave a comprehensive update on the Home Care Contract Awards; New Contracts; Closeouts of Current Contracts; and other topics. In addition to these subjects, members discussed 14
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issues that are affecting their operations, including the Fair Labor Standards Act (FLSA) companionship exemption rule (see related p. 1 story); general overtime and travel expenses; the Quality Incentive Vital Access Provider Pool (QIVAPP) monies; outstanding payments from managed care plans; and untimely authorizations. HCA also provided an update on the FLSA lawsuit; Fully Integrated Duals Advantage (FIDA) program; proposed Medicare Conditions of Participation; Office of Medicaid Inspector General certification forms; and future education programs. HCA will be holding HCC Forums bimonthly; the next meeting is scheduled for March 12. More information about that meeting will be sent at a later date. HCA thanks Arnold Ng for his outstanding presentation and Joseph Campanella for arranging and co-chairing the Forum meeting.
Duke Population Care Coordinator Program Returns to NY Duke University’s “Population Care Coordinator Program” (PCCP) returned to New York last week with a multi-day training session for clinicians, as part of the clinicians’ work toward a PCCP certification. This was the second time since September that Duke faculty provided an on-site component of its program in New York; the program is otherwise conducted on the Duke campus and is part of a 14-week, mostly online curriculum for PCCP training. HCA Executive Vice President Al Cardillo was asked to present as part of the New York program, relating broader system developments, drivers of change and new models of care into the PCCP skill-set. The PCCP is a certification program for nurses, social workers and other clinicians integrating population health and individual patient care. The skill-set aims to provide health care practitioners and their organizations with a template for analyzing and customizing service across the specific population served by the organization, as well as for translating those analytics and interventions into individual patient care. Last fall, after participating in the initial New York PCCP session and discussing the program with HCA members, HCA included PCCP in its recommendations to the state Health Department for eligible provider funding under the Department’s newly developing health workforce retraining and retention program. As of last word, DOH was still in the process of formulating the retraining program and the components it would include (to be funded under the state’s share-savings reinvestment waiver). For further information on this program, contact http://pccp.nursing.duke.edu/ .
CMS Issues Memo to State Surveyors on Qualifying Services Last week, the U.S. Centers for Medicare and Medicaid Services (CMS) sent a memorandum to notify State Surveyors and Regional Offices of a modification in CMS’s policy related to the types of qualifying services provided directly by employees. The memorandum is at: http://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/ SurveyCertificationGenInfo/Downloads/SCLetter02-13.pdf. Continued on next page 15
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Continued from p. 15 CMS is revising its policy, at section 2180 of the State Operations Manual (SOM), to require that a Medicareapproved HHA must provide at least one qualifying service (i.e., skilled nursing, physical therapy, speech language pathology, occupational therapy, medical social services, or home health aide services) directly and in its entirety by employees of the HHA. The other qualifying services and any additional services may be provided either directly or under arrangement. State Operations Manual Transmittal 25, effective April 15, 2001, previously required a more restrictive set of services that had to be provided directly by employees of the HHA. In consideration of the reported and unanticipated operational implications of this policy change, CMS decided to revise its policy and broaden the types of services that may be provided directly by an HHA. For further information, contact Patrick Conole at (518) 810-0661 or pconole@hcanys.org.
CMS Issues Guidance on New OASIS Automated Submission System Late last week, the U.S. Centers for Medicare and Medicaid Services (CMS) issued a detailed memorandum on its newest version of the Outcome and Assessment Information Set (OASIS), OASIS-C1/ICD-9, which went into effect January 1, 2015. In addition, beginning January 1, 2015, CMS converted the OASIS transmission system to ASAP, the same system used for Minimum Data Set (MDS) transmission since October 2010. CMS’s memorandum can be downloaded at: http://www.cms.gov/Medicare/Provider-Enrollment-andCertification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-15-18.pdf. With the passage of the Protecting Access to Medicare Act of 2014 (PAMA), CMS finalized the newest iteration of OASIS, OASIS-C1/ICD-9, for implementation on January 1, 2015. Home Health Agencies (HHAs) are still required to collect and transmit OASIS data in accordance with the HHA Conditions of Participation, Section 484.20, Reporting OASIS Information, and Section 484.55, Comprehensive Assessment of Patients. However, with the implementation of the OASIS ASAP system, HHAs will no longer submit OASIS assessment data to CMS via their State databases. It is important to note that OASIS submissions to the state system were discontinued starting at 6 p.m. on December 26, 2014. Transmissions were resumed on January 1, 2015 in the ASAP system. Providers who have late submissions during that period – from December 26, 2014 through January 1, 2015 – will not be cited for non-compliance. Effective January 1, 2015, HHAs will use java-based Home Assessment and Evaluation Entry (jHAVEN) provided by CMS or jHAVEN-like software provided by various vendors. The jHAVEN Version 1.0.0 is a java-based application and is a replacement to HAVEN 10.8 for the support of OASIS-C and will include OASIS-C1. As with HAVEN, the jHAVEN software application will be provided free from CMS for HHAs to use for submission of their OASIS data. Users who have previously used the HAVEN software will be able to migrate their OASIS-C data from their current database(s) into a new jHAVEN database via the Migration Tool. The Migration Tool was included with the initial release of jHAVEN. In order to allow users the necessary time to complete this Migration step, jHAVEN 1.0.0 was anticipated to be available for download and installation in early to mid-December 16
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2014. CMS has also published a new Correction policy and description of the new ASAP system as a revision to the State Operations Manual, Sections 2202.11, Correction Policy, and 2202.12, QIES ASAP System. The revision reflects new terminology and CMS policy. Due to the change in the OASIS transmission system, error codes will change. Surveyors will not be able to use the ‘Error Summary Report for HHAs’ section of the HHA surveyor pre-survey worksheet, Exhibit 285, of the State Operations Manual (SOM) until further investigation has been completed and new or replacement error messages are identified. For specific questions related to OASIS data submission, contact your State OASIS Automation or Education Coordinator. For CMS policy questions, contact Patricia Sevast at patricia.sevast@cms.hhs.gov. For further information, contact Patrick Conole at (518) 810-0661 or pconole@hcanys.org.
NGS Updates National Government Services (NGS), New York’s Medicare Administrative Contractor (MAC), has recently posted the following information to its website. •
NGS Closed In Observance of Martin Luther King, Jr. Day – NGS’s offices will be closed on Monday, January 19, 2015. This includes the following departments: Electronic Data Interchange (EDI) Help Desk, Provider Contact Center, Provider Enrollment Line, and the Telephone Reopening Unit. Electronic claim files transmitted after 5 p.m. on Friday, January 16, 2015 will have a claim receipt date of Tuesday, January 20, 2015. EDI front-end acknowledgement transactions will be created as EDI claim files are received. The FISS/DDE Provider Online System will be available on Monday, January 19, 2015 during regular hours. While DDE will be available, there will be no support available to respond to any issues. NGS’s Interactive Voice Response (IVR) system is available for providers during Monday’s holiday by calling 1-877-567-7205. NGS’s office will reopen on Tuesday, January 20, 2015 for normal business hours.
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NGS to Conduct FISS Direct Data Entry Credit Balance Report Entry Webinars – NGS’s next “Two for Tuesday” sessions will focus on Fiscal Intermediary Standard System (FISS) Direct Data Entry (DDE) Credit Balance Report Entry. Both sessions will provide the same information and interested participants only need to register for one. The first webinar will be held Tuesday, January 27, 2015 at 2 p.m. and the second webinar is being held Tuesday, February 3, 2015. NGS will provide information on how to meet the requirements for filing the quarterly credit balance report. NGS will also discuss how to utilize the FISS DDE system to enter one’s CMS 838 credit balance detailed report. Registration is at https://attendee.gotowebinar.com/register/2377274245309793537.
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Update on Medicare Adjusting Some Home Health Claims – Certain home health claims for episodes beginning October 1, 2013 and after, which are subject to the payment shift between the Part A and Part B trust funds, have not been paid correctly. No payment is going to the provider and the entire payment is 17
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being reported under “Value Code 17”. The system correction done in August 2014 was unsuccessful. An additional correction was made on December 8, 2014. Affected claims will be adjusted by April 1, 2015. No provider action is needed. For further information, contact Patrick Conole at (518) 810-0661 or pconole@hcanys.org.
Publications •
“HHCAHPS Coordination Team Quarterly Review,” by RTI https://www.homehealthcahps.org/Portals/0/Newsletter/CTQR_Newsletter_Jan_2015.pdf
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“Tools for Choosing a Medicaid Managed Long Term Care Plan,” by the New York Legal Assistance Group http://www.wnylc.com/health/entry/169/
For more information, contact Andrew Koski at (518) 810-0662 or akoski@hcanys.org.
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