Jan. 23, 2017 Edition of The Situation Report by Home Care Association of New York State

SPREAD OF HOURS

REG TEAM

CoPs

SEPSIS

With new minimum wage, home care providers should revisit state DOL rules on pay for spread of hours, which may change the rates of pay for some staff.

HCA takes a closer look at one of the more sweeping components of the Governor’s budget for health care.

HCA finalizes a detailed memo and Feb. 14 webinar to help you prepare for the new CoP changes.

Join HCA and partners for the fourth webinar in a series to prepare you for use of the sepsis screening tool in home care.

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COMING UP Downstate LHCSA Forum in NYC Jan. 30, 2017 10 a.m. to 2 p.m. Selfhelp Family Home Care, Inc. 520 Eighth Avenue, 5th Floor New York, NY 10018

State Advocacy Day and PAC Reception Feb. 6-7, 2017 Albany, NY Feb. 6: PAC reception at HCA’s offices Feb. 7: HCA Board Meeting and appointments with legislators

Your Source for HOME CARE News, Policy and Advocacy

Vol. 2, Issue 4 | January 23, 2017

State Advocacy Day in Two Weeks: HCA Hones Messaging, Presents Findings from Industry Survey and Data Analysis Make your appointments now to meet with legislators on the afternoon of February 7 in Albany HCA’s State Advocacy Day program in Albany on February 6 and 7 is fast approaching in just two weeks. Please be sure to register. A registration form is at the back of this week’s edition of The Situation Report. In addition to registering for our February 7 Advocacy Day and PAC reception the night before (on February 6), please also be sure to make appointments with your See ADVOCACY p. 3

Governor Releases 2017-18 State Budget Proposal Join HCA for February 6-7 State Advocacy Program to shape the outcome for home care In a departure from previous years, Governor Cuomo released his 2017-18 Executive State Budget proposal late Tuesday night with no formal public address. See BUDGET p. 5

INSIDE State Advocacy Day in Two Weeks: HCA Hones Messaging, Data......................1 Governor Releases 2017-18 State Budget Proposal…....................................1 Information Posted on Minimum Wage Increase..........................................1 DOH Notice Affirms LTHHCP Billing Under Episodic Payment System................8 “Spread of Hours” Regulation May Affect Pay for Aides...................................9 A Closer Look at Proposed Health Care Regulation Modernization Team ........11 Governor Signs Two Executive Orders on Wage Issues................................13 Register for Free Member Webinar on New CoP Changes….........................13 DSRIP Update..............................................................................................14 CMS Issues Appeals Final Rule...................................................................14 MedPAC Confirms Recommendations on Rate Reductions…........................15

Information Posted on Minimum Wage Increase The state Department of Labor has posted information, including a Frequently Asked Questions (FAQs) document, on the recently enacted minimum wage increases. See WAGE p. 2

HCA Memo Details Sweeping New CoP Changes…........................................16 Applications Open for HCA’s Board of Directors….........................................16 Webinar Guides Integration of HCA Sepsis Tool into Agency EHRs…....................18 CMS Considering Changes to Star Ratings…........................................................19 HCA-Medical Society Task Force Joins on Partnership Plans…............................19 CMS Releases Second Year of Utilization, Payment Data…................................21 PHHPC Committee Agenda Posted…................................................................21 October Global Cap Report: Spending $21M Above Projections….......................22 HCA Bootcamp: Establishing, Maintaining an Effective Compliance Program…...23 OIG Finds Hospice Election Statement Vulnerabilities....................................23 CMS Posts Guidance on Cybersecurity...............................................................24 2017 Poverty Levels Released….......................................................................25

The Situation Report: the Home Care Association of New York State WAGE from p. 1 The resources are at https://www.labor.ny.gov/ workerprotection/laborstandards/workprot/ minwage.shtm. Some of the important information for home care providers is as follows: 

Every employer must provide notice of the minimum wage increase by posting the applicable minimum wage poster (https:// www.labor.ny.gov/formsdocs/wp/LS207.pdf) and the increase must be reflected in the wage statement provided with the employee’s paycheck; separate written notice is not required.

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The minimum wage is based on where an employee performs work, regardless of where the main office of the employer is located.

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If an employee works in two minimum wage regions (e.g. Westchester and Manhattan), an employer may pay the highest rate for all hours worked, or pay each hour worked in each region at the applicable minimum wage rate for that region.

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If an employee earns wages at more than one rate of pay for the earning period, those rates must appear on the employee’s pay stub.

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If an employer pays different wage rates, the employer must be able to show the employee’s hours worked for each wage rate.

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Overtime must be paid at 1.5 times the employee’s regular rate of pay. If an employee is paid at different rates for different hours, the employer must pay overtime at 1.5 times the regular rate. The regular rate is determined by dividing gross earnings by the hours worked.

Home Care Association of New York State (HCA) 388 Broadway, 4th Floor, Albany, NY 12207 Tele: 518-426-8764; Fax: 518-426-8788; Website www.hcanys.org

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The Situation Report is a weekly publication of the Home Care Association of New York State (HCA). Unless otherwise noted, all articles appearing in The Situation Report are the property of the Home Care Association of New York State. Reuse of any content within this newsletter requires permission from HCA. Joanne Cunningham HCA President jcunningham@hcanys.org Roger L. Noyes Director of Communications, Editor of The Situation Report rnoyes@hcanys.org Al Cardillo Executive V ice President, Policy & Programs acardillo@hcanys.org Patrick Conole Vice President, Finance & Management pconole@hcanys.org Andrew Koski Vice President, Program, Policy & Services akoski@hcanys.org Alexandra Fitz Blais Director of Public Policy ablais@hcanys.org Laura Constable Senior Director, Membership & Operations lconstable@hcanys.org Celisia Street Director of Education cstreet@hcanys.org Mercedes Teague Finance Manager mteague@hcanys.org Jenny Kerbein Director of Governance & Special Projects jkerbein@hcanys.org Billi Wilson Manager, Meetings & Events bwilson@hcanys.org Teresa Brown Administrative Assistant tbrown@hcanys.org

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The Situation Report: the Home Care Association of New York State

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ADVOCACY from p. 1 Senate and Assembly representatives for the afternoon of February 7 at their Albany offices. If you are a member of HCA’s Board of Directors, we are separately scheduling appointments for Board meetings with key officials. We will soon be sharing with the membership a series of documents to support HCA’s advocacy message. This message includes a series of proactive, priority home care measures supporting providers, plans, workers and patients, as well as responsive recommendations following this week’s release of the Governor’s 2017-18 State Budget proposal. (See related p. 1 story.) The Governor’s budget includes some provisions which are opportune for connecting with our agenda. This includes the Governor’s commitment of infrastructure and minimum wage allocations that HCA will be seeking to augment and shape, ensuring full cost coverage of the wage mandate and sufficient investment of working capital for home care provider infrastructure. Governor Cuomo has also proposed a Health Care Regulation Modernization Team in the budget, and HCA is working to ensure that this effort is responsive to the specific regulatory flexibility and streamlining needs of home care. (See related p. 11 story.) We need to ensure that the Governor’s proposal seeks to promote appropriate and needed intra-sector flexibility and that it must also be shaped to confront and proscribe the ongoing workarounds by other sectors increasingly trying to duplicate (outside of article 36 and 40 licensure) home care and hospice services, overstepping the legal, regulatory and credentialed boundaries. Our advocacy message – supported by legislative language already prepared and circulated to state officials – specifically calls for home care reimbursement stability, workforce support, infrastructure development, and regulatory flexibility. These recommendations respond to the urgent reimbursement needs of providers and

managed care plans, especially in light of new costs like the statewide minimum wage hike. They also respond to the experiences of providers seeking to participate in new models of care, like the Delivery System Reform Incentive Payment (DSRIP) program. Your survey results support our message HCA’s proposals are supported in large measure by your recent answers to HCA’s home care industry survey in December and early January. The survey netted responses from 70 home care entities. HCA has analyzed these results in tandem with a review of home care and managed care cost reports, statistical reports, and managed care operating reports obtained from the state. A full publication summarizing your survey responses and our corresponding data analysis will be shared with the membership very soon, and in advance of HCA’s Advocacy Day, when we will present the report – and other advocacy documents – to the Governor’s office and legislators. Below is a preview of some preliminary findings that will be detailed further in the upcoming HCA report. We appreciate your participation in the survey and hope you find value in learning how your experiences with payment and operational issues compare with those of your colleagues. Home care survey and data results According to your survey responses and HCA’s data analysis of cost, statistical and managed care operating reports: 

61 percent of all MLTC plans had negative premium incomes in 2015, up from 42 percent in 2012 (a 46 percent increase since 2012). A negative premium income means that the state’s

The Situation Report: the Home Care Association of New York State payment to the plan is less than the plan’s costs. 

Approximately 43 percent of all MLTCs had medical expense ratios over 90 percent, which indicates that per-member-per-month (PMPM) revenues from the state are not sufficient to meet overall plan medical expenses.

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72 percent of CHHAs and LTHHCPs had negative operating margins in 2014, with similar results for 2015. For 2015, the average operating margin for CHHAs and LTHHCPs was -4.42 percent.

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Thirty-one percent of all home care agencies (CHHAs, LTHHCPs and LHCSAs) have had to use a line of credit or borrow money to pay for operating expenses over the past two years, and another 6 percent of agencies were unable to establish a line of credit or financing due to various financial factors.

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Negative premium incomes in managed care have a downstream effect on provider contracts. Approximately 77 percent of home care contracts with managed care plans do not cover the home care agency’s costs, with an average 18 percent difference between the amount providers are paid and their expenses in such cases.

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The average percentage cut attributable to CHHA Medicaid Episodic Payment System (EPS) rebasing is a 19.6 percent reduction between 2015 and 2016. Nearly half of CHHAs actually reported that they experienced a rebasing cut of more than 30 percent during this period.

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Home care agencies have high staff turnover rates, with survey respondents reporting a 24 percent turnover rate for aides and a 21 percent turnover rate for nurses and other professional staff. On average, agencies are unable to accept 37.3 cases due to staff shortages, with at least three agencies reporting in our survey that over 100 cases can’t be accepted because of shortages.

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Thirty-eight percent of surveyresponding home care agencies have not yet received any funds from DSRIP Performing Provider Systems (PPSs), despite many months of strategic planning work, DSRIP committee discussions, and preparation for project implementation. Meanwhile, only 6.9 percent of the survey-respondents have yet entered into contracts for Value Based Payment, which is fast becoming the overarching state Medicaid financing paradigm. Sixty-five percent of providers have not entered into Value Based Payment contracts and 28 percent indicate that agreements are in progress or they are exploring their Value Based Payment options for the future.

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While nearly half of respondents expect money through Year 3 of the DSRIP implementation schedule, these funds are not expected to cover costs for 43 percent of respondents. Furthermore, over 35 percent of responding agencies are still unsure about whether they will receive future DSRIP payments, let alone whether those amounts would cover costs of expended time and resources.

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Only around 28 percent of respondents feel that DSRIP’s PPS leads understand home care’s role and have actively taken that into consideration/involved them in the design of payment systems and the flow of funds to downstream providers. Forty-eight percent feel somewhat involved and 24 percent do not feel involved at all.

Please be on the lookout for a comprehensive report containing these and other findings of our survey and data analysis, along with context to inform the Legislature and the Governor’s office about some of the payment, operational and regulatory pressures contributing to these findings.

The Situation Report: the Home Care Association of New York State BUDGET from p. 1 The Governor instead toured the state, announcing policy proposals for 2017 in several cities. These public appearances, in lieu of a single “State of the State” address, also revealed a number of the Governor’s budget priorities, as well as priorities that he would seek to address through other venues of legislative development and executive action. This article includes a very cursory overview of the budget, reflecting our analysis prepared to date and shared with the membership during a conference call on Friday. This analysis is not to be considered a full assessment of all relevant provisions, as our review of the budget is ongoing. Please be assured that HCA’s Policy staff are fully engaged in our analysis of the Governor’s plan and will share a more detailed summary with the membership soon. Budget overall The Governor’s overall proposed budget for 2017-18 is $152.3 billion. This number is predicated in part on proposals to close a $3.5 billion deficit, the implications of which are important for all budget areas, including health. Most of the key priority areas of the Governor that impact both the budget and the upcoming positioning of the Legislature are not principally healthrelated but will consume large portions of the negotiations and “discretionary” new spending. These include his priority initiatives in education (including free college tuition for certain income levels), infrastructure spending (including a major overhaul of Kennedy Airport), tax changes, criminal justice reforms, and others.

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Medicaid overall The Governor’s budget proposal appears to incorporate many past fiscal policies for Medicaid, such as an extension of the Global Spending Cap and a continued elimination of Medicaid trend factor adjustments under fee-for-service. Total federal, state and local Medicaid spending is proposed at $65.15 billion for 2017-18, an increase of $2 billion from 2016-17, and an increase in the state-share amount of $567 million (from $17.7 billion to $18.3 billion). The Governor proposes to extend the Global Spending Cap through 2018-2019 (March 31, 2019) at a growth index rate of 3.2 percent, for a total cap of $17.692 billion for the 2017-18 fiscal year. Part of the Medicaid proposal would be funded from a $50 million reduction in state Medicaid funds to New York City (pending the city’s agreement to contingencies). Separately proposed is a reduction (from a 36 percent to 20 percent state contribution) of the state’s general public health funding to New York City (which is not Medicaid, but has ramifications for the Medicaid budget table which includes both health and Medicaid). The cap is also proposed to be met by a wide series of cost/spending reductions related to Medicaid pharmacy and prescription drug funding, some of which have been repeatedly rejected by the Legislature (requiring the “restorations” to be made up elsewhere in the budget and/or consuming other health/Medicaid areas where urgent additions are simultaneously sought). The budget also seeks to build in contingency language in case Washington repeals or otherwise substantially modifies the Affordable Care Act (“ObamaCare”), which would have major fiscal and Medicaid ramifications for New York). More Specific to Home Care While all of the aforementioned elements of the Governor’s proposal may affect home care in some way, and therefore are important for HCA and the membership

The Situation Report: the Home Care Association of New York State

to account for, the proposals more immediately related to home care follow. These are proposals which: build on last year’s capital funding for health care providers, including home and community health; add an Medicaid Redesign Team (MRT)-like mechanism for potentially sweeping regulatory changes; make MLTC benefit changes; and propose other items with implications for health care and home care specifically. As in recent years, the budget rolls forward nearly all of the past cuts in home care, such as elimination of the trend factor, continuation of the gross receipts tax and administrative and general caps, and other provisions. Minimum wage According to briefing materials, the budget includes $242.7 million for home care/ MLTC direct costs of the fiscal year 201718 minimum wage increases for health care workers that provide services reimbursed by Medicaid (the majority of the $255.4 million proposed for Medicaid minimum wage across all affected sectors). Note that the exact representation of allocations for minimum wage varies depending on calendar year appropriation, provider/MLTC rate year, and other portrayals. HCA will be seeking a breakdown that will clarify the often confusing variation in figures that represent how much is being made available and added for minimum wage. Recent Medicaid distributions for minimum wage have been highly problematic and inadequate for matching the needs of managed care plans, providers and the workforce. HCA’s 2017 advocacy priorities include legislative language to ensure a comprehensive, direct, consistent and

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sufficient rate funding methodology for operational costs and mandates, including minimum wage, and we will be using our financial condition survey results from the membership (along with other data analysis) to urge appropriate minimum wage funding levels, as well as a more stable and predictable distribution methodology for payors and providers. Infrastructure pool During last year’s budget, HCA and partners succeeded in gaining a $200 million pool of infrastructure funds that included a $30 million portion dedicated exclusively to home and community-based providers. The Governor’s 2017-18 proposal extends this commitment with a $500 million Transformation Pool for various sectors, including a similar $30 million minimum allocation for community-based providers, including home care. HCA will be working to shape the conditions for provider access of these funds, urging a much greater funding apportionment to community care, as well as a commitment for urgently needed infrastructure investment in home care specifically. Health care regulations The Governor has proposed a Health Care Regulation Modernization Team, with stakeholders (including home care) to recommend and address areas of flexibility in the new/changing system. The Team would be convened by July 1, 2017 with a report due to the Governor no later than December 31, 2017. (See related p. 11 story for a closer look at this proposal.) HCA was pivotal in achieving a vehicle for regulatory waivers under the Delivery System Reform Incentive Payment (DSRIP) program, and several waivers have been approved and extended to home care, but a more home care-specific streamlining is urgently needed. This new proposal from the Governor may offer an important venue for HCA to advance a key

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component of our 2017 State Advocacy action plan, which seeks regulatory modification to assist home care providers in their efforts to participate in new models of care, like DSRIP and Value Based Payments. At the same time, the Governor’s proposal will need critical guiding parameters for this Modernization Team’s scope and process, so that it does not invite the further confusion and crossover of jurisdictions between sectors that have been greatly reported by home care providers under DSRIP and related models. In such cases, providers have experienced other entities overstepping into home care, hospice and other community health services. HCA will seek to advance critical streamlining for home care with our distinct legislative language that specifically focuses on the needs of home care providers, along with accompanying regulatory relief for health care partners, but with due care for the respectful order and integrity of the system. MLTC eligibility The Governor proposes to reinstate the requirement that MLTC eligibility be limited to enrollees who require a nursing-home-level of care. Current enrollees would be grandfathered unless disenrolled from the MLTC. The proposed budget would also change MLTC eligibility to those who require community-based long term care services for a “continuous period” of more than 120 days “from date of enrollment.” Additionally, the Governor proposes to again attempt to carve out non-emergency transportation services from the MLTC benefit and transfers that responsibility to a transportation manager selected by the state. The Governor also proposes to ban MLTC marketing, and to reduce quality payments to MLTCs by $30 million (from $150 million to $120 million). On Friday, the press reported the Governor’s targeting of growth in MLTC enrollment, and intentions to impose limitations (ostensibly among them, the cuts and changes indicated above). The cumulative actions, and “concern over enrollment growth,” appear profoundly contradictory with recent policy positions and goals of the Administration with regard to MLTC. Hospice The budget stipulates that Medicaid will not cover hospice services that are covered by Medicare. While this is a general rule of Medicaid policy, HCA is concerned about the ramifications and intentions of this language as it relates to hospice directly, and to hospice patients simultaneously served in MLTC (and/or other collaborating entities). Next Steps and Follow up HCA will follow with a detailed memorandum on the budget, covering these and additional items of interest/concern, in the coming days. Please also see our related (p. 1) story regarding HCA’s Advocacy Day and advocacy efforts.

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DOH Notice Affirms LTHHCP Billing Under Episodic Payment System HCA will provide the membership with further details HCA has led efforts to clarify and promote opportunities for LTHHCP providers to serve patients and bill Medicaid in the changing health care system. Though the federal LTHHCP waiver has expired, the state has since clarified, at HCA’s request, that LTHHCPs are permitted to admit and serve patients in a manner otherwise available to CHHAs, including through the Episodic Payment System (EPS), managed care contracting and other opportunities. This morning the state Department of Health (DOH) Bureau of Long Term Care reimbursement sent a notice reinforcing this status, stating that LTHHCP providers “with valid operating certificates may directly admit and serve patients under their LTHHCP/CHHA-authorization. Although federal waiver approval for the LTHHCP no longer exists, the LTHHCP provider may contract with Medicaid waiver programs to provide home health services to Medicaid waiver program enrollees or fee for service Medicaid recipients.” This means that LTHHCPs may: 

Directly admit and serve Medicaid and dual Medicare-Medicaid patients consistent with state and federal CHHA guidelines.

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Directly admit and serve Medicare, private pay, and private insurance patients under applicable Medicare, Article 36 and/or State Insurance Law standards.

“Effective October 1, 2016, LTHHCP providers, delivering home health services, are granted access to bill Medicaid using the appropriate CHHA Episodic Pricing System rate codes,” the Department of Health states. “It should be noted that LTHHCP providers which take advantage of this opportunity will also be required to file the appropriate CHHA costs reports each year.” HCA wanted to share this notice with members before The Situation Report went to press, and we will be providing more detailed information about the specifics for LTHHCPs to access the EPS system and other details of this notice as soon as possible. Providers with any questions about the LTHHCP’s status may contact bltcrch@health.ny.gov.

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“Spread of Hours” Regulation May Affect Pay for Aides Agencies are advised to revisit the regulations in light of new minimum wage hike HCA advises members that current state Department of Labor (DOL) regulations regarding “spread of hours” and “split shifts” may affect how many hours they have to pay their home care aides, given recent changes in the minimum wage. The regulations, Title 12 NYCRR Section 142-2.4, (https://www.labor.ny.gov/formsdocs/wp/cr142.pdf) require employers to pay an additional hour at minimum wage to employees in cases when the “spread of hours” exceeds ten hours or the employee works more than one shift in a day separated by more than a meal period. Given the December 31, 2016 increase in the minimum wage, agencies are strongly advised to review the spread of hours/split shift regulation at this time. “Spread of Hours” is defined as the interval between the beginning and end of an employee’s workday. The spread of hours for any day includes “working time plus time off for meals plus intervals of off-duty” (Title 12 NYCRR Section 142-2.18). “Split Shift” is defined as a schedule of daily hours in which the working hours required or permitted are not consecutive. A meal period of one hour or less is not considered an interruption of consecutive hours. (Title 12 NYCRR Section 142-2.17). For example, an employee working more than ten hours in a day including a lunch break, or an employee who had two shifts where there is a break longer than a meal period (even if the number of hours between the start of the first shift and the end of the last shift did not exceed ten), would be entitled to an additional hour of pay at minimum wage, even though the additional hour was not “worked.” This “bonus pay” is known as the “Spread of Hours” or “Split Shift” requirement. State DOL regulations do not require the extra hour to be paid if the employee’s usual hourly rate is enough above minimum wage that the employee was paid at least the minimum wage for all hours worked plus one premium hour (at the minimum wage) for each day in which there was a spread of hours exceeding ten hours or split shift. For many employers who formerly paid their employees above the current minimum wage requirement, this “spread of hours/split shift” requirement did not affect their aides’ pay. This was because those employees’ regular pay rate resulted in a total weekly wage that was higher than the amount required under the regulation. For example, if the employee was paid $10 per hour and the state minimum wage was $9 per hour and the person worked 36 hours in three 12-hour shifts in the week, he or she would have been paid $360 for the week while the minimum wage plus a spread of hours/split shift premium would have required the individual to be paid $351. See the calculation below: 36 hours x $9 (minimum wage) = $324 3 hours of premium pay x $9 (minimum wage) = $27 $324 + $27 = $351. Continued on next page

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Continued from previous page Since the employee was already paid more than the $351 required by the regulations, the state DOL and courts have said that no additional pay was required. However, due to the minimum wage increases on December 31, 2016, HCA recommends that all home care agencies reexamine their compliance with “spread of hours/split shift” liability, particularly those home health providers that pay their employees at or close to the current minimum wage requirement, which increased from $9 per hour to $11 per hour in NYC, $10 in Westchester and Long Island and $9.70 in the rest of the state. Example To illustrate how the calculation would apply to a home care agency providing services in New York City in 2017, let’s assume that a personal care aide (PCA) worked 5 days per week, 12 hours per day and was paid $11.00 per hour. The spread of hours requirement for this PCA would be calculated as follows: 1. The total minimum wage due to a non-exempt employee for the workweek would be 60 hours times $11.00 (60 X $11.00 = $660), plus 2. 20 hours at one-half times the employee’s regular hourly rate of $11.00 (20 X $5.50 =$110), plus 3. 5 hours times $11, which represents the “spread of hours” obligation for each day worked in excess of 10 hours (5 X $11 = $55),equaling 4. A total weekly minimum wage of $715 ($660+ $55) and total overtime wage of $110. If the weekly minimum wages actually paid to the employee equal or exceed $715, then no additional payments are due to the employee under the spread of hours regulation. Overtime pay may not be used to cover the required spread of hours/split shift premium. Since, in this example, the regular wages would be 60 hours times $11, or $660, the employee would be owed an extra $55 to meet the $715 minimum. However, if that agency was paying the PCA $12 per hour under the exact same scenario, it would exceed the $715 threshold, and no additional payments would be required from the employer under the spread of hours regulation (60 X $12 = $720). Members are encouraged to review the work hours of their employees to assess their compliance with the spread of hours regulation. Providers using payroll companies may also want to discuss this regulation with them to ensure that they are aware of this requirement. Providers with questions on this rule should contact their legal counsel. Roni E. Glaser, Esq., Partner at Glaser & Weiner, LLP helped to write this article.

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A Closer Look at Governor’s Proposed Health Care Regulation Modernization Team Perhaps one of the most significant – and potentially sweeping – health care impacts in the Governor’s new proposed budget is a Health Care Regulation Modernization Team that would review and recommend regulatory changes across multiple sectors. This team would provide the Governor with recommendations related to a “fundamental restructuring of the statutes and regulations that govern the licensure and oversight” of various health care sectors, including home care, to better align the system with evolving changes, such as the state’s Delivery System Reform Incentive Payment (DSRIP) Program and Value Based Payments (VBP). Ostensibly resembling the Medicaid Redesign Team of 2011, the proposed group will be made up of 25 voting members representing state agencies, the co-chairs of the Public Health and Health Planning Council, two members each from the Senate and Assembly, and stakeholders from the health care industry continuum (including home care). The governor also reserves the right to add additional members to the team at his discretion. It would begin work by July 1 and produce a final report by December 31, though the proposal leaves open the option for the Commissioner of Health to extend the Team’s work. Under the direction of the Governor’s appointees, this team will potentially develop significant changes in areas such as licensing and scope of practice laws and regulations for the delivery of care in the home, as well as Certificate of Need (CON) reform “to support agility in the changing delivery system.” The team raises potential opportunity as well as risks for home care, specifically in its mandate to “modernize licensing and regulation of home care,” among other team objectives. HCA will seek to carefully shape the team’s deliberations over home care issues, ensuring that decisions appropriately consider the delicate balance of system roles while offering constructive regulatory relief urgently needed in home care. Indeed, regulatory relief is a proactive component of HCA’s advocacy plan, developed pre-budget, and we will work to build our proposals as part of the team and/or as separate legislative language where appropriate. Other target areas of the team include: 

Telehealth reimbursement: integrating, standardizing and increasing flexibility of state agency regulations around both delivery of and reimbursement for telehealth programs.

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Eliminating duplication and inconsistency in federal and state standards, related to such items as physical environment, quality of care, information technology (IT), reporting, surveillance, and licensure.

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Community-need standards, allowing for more flexibility in the use of home health care, assisted living, nursing homes, and community paramedicine.

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Care model realignment: aligning home and community based care models with the Olmstead Development and Implementation Cabinet Report.

Continued on next page

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Continued from previous page 

Licensing and scope of practice (individual/clinician-level) to increase flexibility in related rules, in collaboration with the previous and ongoing work of DOH’s State Health Innovation Program/ DSRIP Workforce Workgroup.

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Streamlining care and integrating services, particularly primary care, mental health, and substance use disorder services in the clinic setting.

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Consideration of regional circumstances for regulatory changes due to certain characteristics of a region or community, such as isolation, poverty, barriers to accessing care, etc.

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Inspections: calibrating facility and home care inspections and the scope of CON reviews based on provider performance on quality and other outcome metrics.

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Increasing public notification, education and engagement.

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Support for Emergency Medical Support (EMS) and pre-hospital care.

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Authorization for demonstration programs that test and evaluate new and innovative processes and procedures for the organizing, financing, and delivery of health care services

The Modernization Team’s appointed Executive Director will notify stakeholders about the purposes of the team, as well as the opportunities (which will be statewide and likely via expertise-based workgroups) and schedule for their participation. Relatedly, HCA has already advanced draft legislation proposing a state budget solution to enact statutory changes in the state budget that facilitate flexibility and direction for more effective home care participation in the new, alternate service delivery and payment models (including DSRIP, Value Based Payments, patient centered medical homes/advanced primary care practices, Accountable Care Organizations, bundled payments, etc.). Ultimately, our position is that any statutory changes must also incentivize home care participation in public health priority solutions for cost savings or cost avoidance (including sepsis prevention, early identification and treatment, falls prevention, asthma mitigation, disparities, and others). HCA will work to ensure that jurisdictional and licensure boundaries appropriately recognize home care’s longstanding role and design, at a time when DSRIP and other system changes have incentivized service cross-over, and we will ensure that policies generally aimed at home care licensing or structural changes do not create undue barriers or limitations for the existing infrastructure of services. For more information, contact the HCA Policy staff.

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Governor Signs Two Executive Orders on Wage Issues On January 9, Governor Cuomo signed two Executive Orders that relate to wage issues. Executive Order 162 (http://www.governor.ny.gov/news/no-162-ensuring-pay-equity-state-contractors) requires all state contractors to disclose data on the gender, race, ethnicity, job title, and salary of all its employees in all state contracts, agreements, and procurements issued and executed on or after June 1, 2017. Contracts and procurements issued on or after that date must include a provision identifying this additional requirement. Additionally, subcontractors must also provide the same information for their employees. This information will be reported to state agencies and authorities on a quarterly basis for prime contracts having a value in excess of $25,000. Executive Order 161 (https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_161.pdf) prohibits state entities from asking the salary history of prospective employees until the applicant is extended a conditional offer of employment. More information is at http://www.governor.ny.gov/news/icymi-governor-cuomo-signs-executive-orderseliminate-wage-gap-and-further-new-york-s-efforts.

Register for Free HCA Member Webinar on New Home Health CoP Changes Home Health CoP Readiness: HCA providers and MLTCs Must Prepare Now for Implementation of the New Home Health Conditions of Participation (CoPs) February 14, 2017 (11 a.m. to 12 p.m.) HCA is offering a webinar on February 14, free of charge for HCA member providers and MLTCs ($79 for non-members) that will provide you with a deeper understanding and implementation plan for the newly finalized Home Health CoPs, which include sweeping changes affecting virtually all aspects of home care operation. (See related p. 16 story.) To learn more about the program and register, please see the form at the back of this week’s newsletter or at http://hca-nys.org/wp-content/uploads/2017/01/HCA-Conditionsof-Participation-Webinar-Registration-Form.pdf. The program, presented by home care clinician and operational expert Trish Tulloch, provides vital information for executive, clinical, compliance and operational team members across your entire organization. The long-anticipated CoPs are scheduled to take effect on July 13, 2017. These are the first major changes to the CoPs since 1989, but providers have a very short timeframe to plan for and implement these significant revisions that impact both operational and financial planning for all home health providers. Join this program to hear more about the specific CoP revisions and updates that impact operational and clinical practice. This program will address priority action plans to successfully implement all required elements of these sweeping new changes. Participants will be able to: detail all required final CoP updates; list provider actions to address and implement each CoP update; discuss operational and clinical practice refinements to meet the new CoPs; and access tips to comply with the new CoPs. Continued on next page

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Continued from previous page This webinar is targeted for home care CEOs, CFOs, COOs, Administrators, Clinical Supervisors, Directors, Educators, Performance Improvement Staff; those responsible for the oversight and delivery of care and services in the certified home health care setting; and key fiscal and operational staff in HCA member MLTCs.

DSRIP Update The state Department of Health (DOH) has announced a second installment in its Delivery System Reform Incentive Payment (DSRIP) program whiteboard video series. In the second whiteboard video, titled, “Myths and Facts of Value Based Payment,” state Medicaid Director Jason Helgerson discusses common myths and facts about the Value Based Payment (VBP) initiative, including common misunderstandings about the program. The video is at https://m.youtube.com/watch?v=kxghveSYrBk DOH has also released a video titled, “DSRIP: Looking Ahead to 2017,” in which Mr. Helgerson talks about what is ahead for the DSRIP Program in 2017, including the importance of the mid-point assessment. He also describes how VBP will fit into and align with DSRIP and how it affects Medicaid in general in 2017. To watch this video, click here: https://m.youtube.com/watch?v=_m021nq6ZZY.

CMS Issues Appeals Final Rule This week, the U.S. Centers for Medicare and Medicaid Services (CMS) issued a final rule that revises the procedures that the Department of Health and Human Services (HHS) follows at the Administrative Law Judge (ALJ) level for enrollment, entitlement, payment, and coverage appeals. The rule is at https://www.gpo.gov/fdsys/pkg/FR-2017-01-17/pdf/2016-32058.pdf. HCA will be analyzing the 170-page rule; meanwhile, some highlights are below. The rule reportedly: permits the Office of Medicare Hearings and Appeals (OMHA) attorneys to handle some third-level appeals; allows for precedential decisions at the fourth level of appeals; and removes language that says Administrative Law Judges “must” issue a decision within 90 days. The rule provides for attorney adjudicators to: decide appeals when a decision can be made without a hearing; review dismissals issued by a Qualified Independent Contractor or Independent Review Entity; issue remands to CMS contractors and dismiss requests for hearings when a provider or other entity that is appealing withdraws the request. OMHA says that about 24,500 appeals per year could be directed to these attorneys who can process them at a lower cost than ALJs. The rule states that, as of September 30, OMHA had more than 650,000 pending appeals but could only handle about 92,000 appeals per year. OMHA outlines a three-pronged strategy to deal with the appeals, including administrative actions, investment in new resources at all levels of appeals, and a push for legislative reforms and additional funding. Continued on next page

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Continued from previous page The rule was issued after a federal district court rejected HHS’s request to reconsider a recent court decision that orders the agency to eliminate the backlog at the third level of appeals by 2021 as part of a lawsuit. HHS asked the court to reconsider its decision on the grounds that requiring HHS to clear the backlog by 2021 would force the agency to pay claims that might have been appropriately denied just to empty the appeals queue.

MedPAC Confirms Intent to Recommend Home Care, Hospice Rate Reductions The Medicare Payment Advisory Commission (MedPAC) once again voted, without dissent, to recommend an additional five-percent cut in the next annual Medicare payment rates for home health agencies, while also endorsing flat reimbursement levels for hospices. MedPAC’s recommendations for 2018 were informally agreed upon in December 2016. Its January 12 vote means the recommendations will be included in the MedPAC report to Congress in March. The advisory panel is pushing for significant changes in post-acute care provided to people recovering from serious illnesses, surgery or strokes. MedPAC does not control Medicare spending, but Congress and other federal officials carefully consider its findings and recommendations. For the past several years, MedPAC has recommended deep rate cuts for home health services along with a series of policy changes ranging from the institution of copayments to program integrity measures. It is important to remember, however, that in recent years, Congress has rejected MedPAC’s recommendations regarding post-acute settings, due to strong advocacy by the home care industry, which HCA has actively participated in, but the recommendations do hold significant weight and remain a target of continued, vigorous advocacy. Specifically, MedPAC recommends the following: 

Home health care Medicare payment rates should be decreased by 5 percent in 2018 and the U.S. Centers for Medicare and Medicaid Services (CMS) should implement a two-year rebasing of the home health prospective payment system (PPS) beginning in 2019.

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Congress should direct CMS to revise the home health PPS to eliminate use of the number of therapy visits as a factor in how much home health agencies are paid at the same time as the rebasing.

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Elimination of any Medicare hospice payment increases that are set to take effect in 2018.

MedPAC’s recommendations were based from its analysis for 2015 that shows free-standing home health agency margins to be at 15.6 percent nationally, a significant increase since 2014 despite reductions in payment rates through rebasing. HCA has and will continue to communicate to CMS and New York’s Congressional Delegation that CMS’s current rebasing methodology is rooted in incomplete data and assumptions, causing New York providers to shoulder negative operating margins for thirteen years in a row, contrary to aggregate, nationwide data. New York providers experienced an un-weighted average margin of -16.4 percent in 2013. We have also repeatedly sought postponement or suspension of any further rate rebasing, pending a more complete

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impact analysis and a recalculated formula using more accurate and up-to-date data. HCA is in the process of preparing a letter to MedPAC opposing its recommendations and pointing out the flaws in its assumptions. We will share this letter to the membership once completed.

Applications Open for HCA’s Board

For further information, contact Patrick Conole at (518) 810-0661 or pconole@hcanys.org.

The Board’s principal task is to promote and implement a vision and strategic policy direction for the home care industry and the Association. Board Members will: participate in scheduled board meetings, assigned ad hoc workgroups and HCA events; provide strategic policy guidance on issues that support costeffective, efficient, high-quality home and community-based care services; promote home and community-based care as a core integral service that crosses home care settings; and represent the broad interests of the entire membership.

HCA Memo Details Sweeping New CoP Changes HCA offers free Feb. 14 webinar to help providers prepare HCA has prepared a detailed memo on the newly issued final changes to the Home Health Conditions of Participation (CoPs), which provide the most substantial changes to the existing CoPs since 1989. The changes, finalized by the U.S. Centers for Medicare and Medicaid Services (CMS) on January 9, will be effective July 13, 2017. To learn more, please download HCA’s memo at: http://hca-nys.org/wp-content/ uploads/2017/01/ MedicareHomeHealthCoP011817.pdf. CMS initially proposed changes to the Medicare CoPs on October 9, 2014, and HCA returned comprehensive comments at that time. In our comments, we expressed strong concerns that the proposed changes, though laudable, would: add new and unfunded costs; be in steep conflict with CMS Continued on next page

Volume 2, No. 4 January 23, 2017

HCA is actively seeking nominations for our Governing Board. The Board includes approximately 25 Directors representing a variety of provider member organizations, including LHCSAs, CHHAs, Hospices, MLTCs, and LTHHCPs. Non-provider members (i.e., Allied Organization Members or Individual Members) and, new this year, Associate Members may also be considered.

Board meetings are held five times per year; however, the Chairperson may convene the Board throughout the year by conference call. In addition to the regularly scheduled meetings, Board Members are asked to attend HCA “signature” events, which include the HCA Annual Membership Meeting, held in May, and HCA’s Advocacy Day, usually held in early February. To apply for an appointment, interested individuals are asked to complete the online form at https://www.surveymonkey.com/r/ 2017BoardApplication. It explains more about the qualifications, duties and term length for various Board positions. Candidates should complete this application by February 15, 2016. Applications will be reviewed by the HCA Nominating and Governance Committee. Those candidates selected for consideration will be contacted and vetted for approval by the HCA Board of Directors, and slated for a vote at the HCA Annual Membership Meeting in May 2017. Please consider completing this application process or sharing this information with a colleague who would be suitable for possible selection to the Board. If you have any questions about this process, please contact HCA’s Director of Governance and Special Projects, Jenny Kerbein, at (518) 810-0659 or jkerbein@hcanys.org.

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Continued from previous page efforts and CMS-approved waivers to New York and other states to enroll Medicaid and dual MedicareMedicaid patients into managed care; and pose significant feasibility challenges and resource dislocation of agency staff, particularly given the fragile and already overextended status of many New York agencies. The lengthy final rule (see https://www.gpo.gov/fdsys/pkg/FR-2017-01-13/pdf/2017-00283.pdf) contains an array of new requirements and changes related to: nursing, therapy and aide services; supervision assessments; patients’ rights; care planning; quality improvement; clinical records; agency structural requirements; governance; management; and other CoPs that dictate the operation and function of HHAs certified by Medicare (and Medicaid). While some of the changes are merely technical or organizational in nature, others would have a significant impact on HHA clinical and administrative functions. Indeed, CMS estimates these changes will cost home health agencies $293 million nationally in the first year and $290 million in year two. HCA has advised state DOH officials of the increased cost impact and implications for managed care plan premiums and provider rates. DOH is reviewing the information we have provided. HCA’s memo provides a preliminary summary of the most important features of the new finalized CoPs. We will update this information and notify members as needed. These summaries are organized by section number and by category so that your staff can easily cross-reference each provision in the final CoPs with the existing CoPs in order to assess the impact on your organization. Also attached to the memo is a chart (from the Federal Register notice) showing the relationship between the pre-existing CoPs and the newly finalized changes. HCA encourages members to share our memo with all of your key management, supervisory, clinical, compliance and other staff responsible for adhering to CoPs and related federal and state regulatory requirements, as well as with key partners who need to be informed about this development and its implications. While not all agencies are subject to CoPs directly, we stress that the CoPs govern the provision of services provided by Medicare-certified agencies (CHHAs and LTHHCPs) under fee-forservice, private duty and managed care, including those services that are contracted to other provider partners, such as LHCSAs. Therefore, it is recommended that agencies who contract out for services also share this information with these and other key partners. The CoPs also form the basis for many of New York State’s regulations, which are applicable across the entire spectrum of home care service delivery, such as home health aide training and supervisory requirements and others. As such, HCA will also be consulting with state regulatory officials to determine the impact of CMS’s final federal changes on existing state regulations and survey practices governing all home care providers, not just Medicare-certified agencies. As part of this process, we will also work to identify any possible overlap between the new CoPs and existing state requirements. This analysis will help determine the net effect of the CoP changes on New York’s home care agencies in cases where New York’s standards already meet or exceed those embodied by the new CoPs. HCA will continue to analyze these revisions and their impact on HHAs in New York State. Additionally, we will advocate on your behalf to CMS and the state Department of Health (DOH) before, during, and

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after the CoPs take effect to ensure as smooth an implementation as possible and report back with concerns from members in the field. HCA has scheduled the first in a series of education programs to inform providers about the new rule, starting with a webinar on February 14. (See related p. 13 story.)

Webinar Guides Integration of HCA Sepsis Tool into Agency EHRs Next webinar in queue for February 9, followed by imminent release of sepsis tool A webinar, the third in a series, was conducted on January 19 to guide home care agencies on the integration of the HCA home care sepsis screening and intervention tool into agency electronic health records (EHRs). The webinar, hosted by IPRO, was co-conducted by HCA, IPRO, and representatives of two providers and two EHR companies who presented their prototypes and pilot experience in integrating the sepsis tool into their EHRs. The webinar was the latest in a four-part series sequenced to provide information before the statewide release and implementation of the HCA tool, which is anticipated in February, shortly following the fourth and final webinar, scheduled for February 9 (see further details and registration on the next page). In the January 19 webinar, agency and EHR faculty presented their approaches for EHR integration of the tool. The presentations displayed actual screen shots from their systems showing how the questions and responses contained in the tool have been embedded to appear in the EHR, and explained the procedures and technical details for completion of each. Presenters indicated that EHR integration was readily achieved, and that cost was not an issue. The presenters also reported that clinical time completing the screen was not an issue, completion was seamless with existing assessment criteria and processes, and that staff were extremely favorable to the multiple benefits of adopting the tool and conducting the screen. HCA emphasized the significance of this resource to provide home care agencies with support in the life and limb-saving fight against sepsis, as well as in engagement of health care partners, including hospitals, physicians and health plans. This is especially important in the increasingly performance-based system measured in quality, value and cost. Sepsis is the number one all-cause of Medicare thirty-day hospital readmission in New York State, and second only to schizophrenia in its impact on New York Medicaid. HCA also described the continuing influx of queries and interest in using or modeling the tool from sources around the country as well as in the state. During this week’s program, HCA outlined plans for next steps, including the next webinar, the useragreement process for agency authorization in using the tool, and ongoing support for agencies implementing the tool planned by HCA and IPRO. HCA especially thanks the agency and EHR faculty who worked diligently to prepare, present and share their integration methods. This includes VNA of Utica and Oneida County’s Amy Bowerman, RN, Director of Quality Improvement and Director of Patient Services-Senior Network Health, who is HCA’s Sepsis Workgroup Leader, as well as her VNA colleague Tammy Knoop, RN, Education Supervisor; Homecare Homebase Sales Account Representative Christopher O’Donnell; Patrick Archambeault, RN, MS, CRNI, Director of Clinical Specialties at Continued on next page

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Continued from previous page Eddy VNA/St. Peter’s Partners; the Eddy/St. Peter’s Barbara Bureau, Assistant Director of IT Clinical Support; and Julie Peterson, Product Specialist Sales Support, Delta Health Technologies. Next Webinar: Thursday, February 9 10:30 a.m. to noon Webinar IV Topics: Train-the-Trainer and Introduction of Screening Tool Protocol Target audience: clinical leaders, educators, administration. To join the online event: 1. Visit http://tinyurl.com/zdgtdn7 and click “Join Now” 2. Dial (888) 634-4129 to join the audio conference only 3. If assistance is required, contact QNet WebEx Support at qnet_webex_support@hcqis.org or 571-598-1988

CMS Considering Changes to Quality of Patient Care Star Ratings During a National Provider Call last week, the U.S. Centers for Medicare & Medicaid Services (CMS) described a change under consideration to the Quality of Patient Care Star Ratings calculation algorithm. Specifically, CMS is considering replacing the Influenza Immunization Received for Current Flu Season measure with the claims-based Emergency Department Use without Hospitalization measure. The potential change would replace an OASIS-based quality measure with a claims-based measure. The proposal comes as the influenza measure has affected home health rankings much more than other quality measures. CMS believes that, in fact, it’s more inconsistent than other quality measures. CMS is accepting public comment on the change through February 20, 2017 and HCA members interested in doing so should submit their comments to: HH_QM_Comment@abtassoc.com. The CMS slides from the call, which provide additional information, can be downloaded at: https://www.cms.gov/Outreach-and-Education/Outreach/NPC/Downloads/2017-01-19-HHQoPCPresentation.pdf. For further information, please contact the HCA Policy staff.

HCA-Medical Society Task Force Planned Actions The special joint task force of HCA and the Medical Society of the State of New York (MSSNY) recently met to progress on actionable steps to promote physician-home care partnership in the delivery and management of care. The discussion included: 

The new and sweeping changes to the Federal Conditions of Participation (COPs) for home care adopted by the U.S. Centers for Medicare and Medicaid Services and released last week, specifically the implications for home care agencies and physicians. (See related p. 16 story.) HCA will provide an

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extensive summary and an analysis of the rule to MSSNY for further discussion of implications and best ways for agencies and physicians to manage them in a health care environment oriented toward integrated care models and managed care, and also given the uncertainty of all federal regulatory provisions with the change of federal Administrations. 

Continued HCA-MSSNY collaboration to streamline the Face-to-Face requirements under both Medicare and Medicaid. A potentially changing perspective on regulations entering with the new Trump Administration in Washington may provide an opportunity for material streamlining of Faceto-Face. With that, MSSNY plans further outreach to the American Medical Association (AMA) to urge their support for necessary reform. Meanwhile, at the State level, the task force agreed to a joint document of guidance to present to the State Department of Health for maximally and appropriately streamlined implementation of the Medicaid Face-to-Face requirement, which is scheduled to begin enforcement in July. The joint document draft will be developed by the task force in the coming weeks.

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Support of federal policy changes to permit nurse practitioners to sign orders, as this would assist in multiple ways with streamlining orders, access and appropriate payment for services. Task force members urged concrete actions at the federal level to support this change. HCA has worked extensively with members of Congress toward this policy change. New York’s U.S. Senator Charles Schumer, now also the Senate’s Minority Leader, has legislatively sponsored these efforts. Task force members recommended that this issue, along with (and related to) Face-to-Face, also be taken up with the AMA for support.

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The next round of “Probe and Education” activity being conducted by CMS fiscal intermediaries with home care providers. HCA provided background and discussed implications for physicians and the task force. HCA will provide MSSNY with a written summary of “Probe and Educate” that, in turn, will be reported in MSSNY’s statewide newsletter sent to physicians and also every county medical society chapter.

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Mechanisms to support timely and integrated health information technology (HIT) exchange and documentation between physicians and home care agencies. The task force discussed a number of opportunity areas and needs, including state budget requests, state HIT legislation formulated by HCA, MSSNY participation on HCA’s HIT committee, and garnering support from the state and regional hospital associations for standardized methods that ensure medical certification of home care for patients prior to discharge.

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HCA’s newest legislative proposal to facilitate home care agency participation with physicians and other partners in the new and evolving models of care and coverage (e.g., patient centered medical homes, value based payment, ACOs, etc.).

HCA thanks MSSNY staff and physicians, and our agency leaders participating on this task force for these critical joint efforts. For further information, please contact Al Cardillo acardillo@hcanys.org.

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CMS Releases 2nd Year of Home Health Utilization, Payment Data The U.S. Centers for Medicare and Medicaid Services (CMS) has recently posted to its website the second annual release of the home health agency (HHA) Public Use File (PUF) with data for 2014. The updated 2014 data and supplemental information can be accessed on CMS’s website at: https:// www.cms.gov/Research-Statistics-Data-and-Systems/Statistics-Trends-and-Reports/Medicare-ProviderCharge-Data/HHA.html. The Home Health Agency PUF presents summarized information on services provided to Medicare beneficiaries by HHAs. It includes information on utilization, payment (Medicare payment and Medicare standardized payment), submitted charges, and demographic and chronic condition indicators organized by CMS Certification Number (6-digit provider identification number), Home Health Resource Group (HHRG), and specific state breakdowns. The updated 2014 PUF also has information for 10,882 home health agencies (down from 11,062 in 2013), over 6 million claims, and almost $18 billion in Medicare payments for 2014. New in the 2014 data is the demographic and chronic condition information. For further information, contact Patrick Conole at (518) 810-0661 or pconole@hcanys.org.

PHHPC Committee Agenda Posted The state Department of Health (DOH) has posted the agenda for the January 26 meeting of the Public Health and Health Planning Council (PHHPC) Committee on Establishment and Project Review. The agenda is at https://health.ny.gov/facilities/public_health_and_health_planning_council/meetings/ 2017-01-26/docs/exhibits.pdf. It includes applications by: 

Three entities to establish a new LHCSAs affiliated with an Assisted Living Program.

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Three LHCSAs for changes of ownership.

As reported to members previously, DOH is currently not scheduling LHCSA applications that request approval for the establishment of a new LHCSA. The only LHCSA applications currently being scheduled on agendas are those requesting approval for a change of ownership of an existing agency, LHCSAs to be affiliated with Assisted Living Programs, and those submitted by governmental agencies (counties). DOH has established this policy to get through a backlog of applications that have been contingently approved by the PHHPC to establish new agencies. In such cases, these applicants have not completed all of the requirements for licensure, which includes the approval of the applicant’s policy and procedure manual and a pre-opening survey.

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October Global Cap Report: Spending $21M Above Projections The state Department of Health (DOH) has issued its monthly Medicaid Global Cap report. This latest report, for October, covers the period of April 1, 2016 to October 31, 2016. It finds that overall spending for this period was $21 million above Medicaid Global Cap projections, across all sectors, a difference of $11.693 billion in actual spending versus $11.672 billion in estimated spending for the seven-month period. Specifically, DOH mentions factors in home care and MLTC enrollment that have caused pressure on the Global Cap. According to DOH: 

Managed Long Term Care was $23 million above projections due to higher-than-expected enrollment. Through October there were 3,305 more recipients (1.8 percent higher) than anticipated; and

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“Other Long Term Care” spending, a category which includes home care, was $31 million above estimates. The Department shows actual spending of $369 million versus projected spending of $338 million. DOH says this is a result of higher-than-expected utilization through October. (There were 1,817 more individuals receiving personal care services than anticipated.) It should be noted, however, that DOH confirmed in a 2016 meeting with HCA and other association representatives that the Medicaid Global Cap projections will not include any additional Medicaid spending due to the phase-in of the $15-per-hour statewide minimum wage, as these expenses will be kept outside the cap.

In other report highlights: 

Total Medicaid Managed Care (MMC) spending was $18 million over projections, a difference of $8.532 billion (actual spending) versus $8.514 billion (estimated spending).

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Total Medicaid enrollment reached 6,133,504 enrollees at the end of October 2016. This reflects a decrease of 33,786 enrollees, or 0.5 percent, since March 2016.

HCA is surveying these global cap reports carefully in an information gathering effort, combined with other data analysis, to ensure accurate reflections of home care finances, with an eye toward any indication of rate or payment decisions stemming from the state’s analysis of home care’s performance. The full report is at: https://www.health.ny.gov/health_care/medicaid/regulations/global_cap/monthly/ sfy_2016-2017/docs/oct_2016_report.pdf. For further information, contact Patrick Conole at (518) 810-0661 or pconole@hcanys.org.

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HCA Bootcamp: Establishing and Maintaining an Effective Compliance Program HCA is holding a bootcamp session on March 23 in New York City (from 9:30 a.m. to noon) to help providers establish and maintain an effective compliance program – a topic that is all the more important during a time of heightened compliance scrutiny and multiple audits by state and federal agencies. This program, presented by compliance expert Rachel Hold-Weiss of the Arent Fox Health Care Group, will convey: 

Why a compliance program is needed.

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An overview of state and federal requirements for compliance programs.

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Components of an effective compliance program, including the eight required elements and seven areas a compliance program must cover.

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Which staff need to be trained and how training should be conducted.

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Recent state Office of the Medicaid Inspector General (OMIG) compliance guidance and OMIG audit protocols.

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Testing the effectiveness of a compliance program, including auditing the compliance program and self-assessment.

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State and Federal False Claims Acts.

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Compliance findings and remedial actions.

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OMIG (and federal Office of the Inspector General) voluntary disclosures.

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Annual compliance (and federal) certifications.

To register, and learn more, download the registration form at http://hca-nys.org/wp-content/uploads/2015/ 01/HCA-Bootcamp-Establishing-and-Maintaining-an-Effective-Compliance-Program.pdf.

OIG Finds that Many Hospice Election Statements Lack Required Information or Have Other Vulnerabilities After a stratified random sample review of hospice election statements and certifications of terminal illness, the U.S. Office of the Inspector General (OIG) has reported that more than one-third of hospice General Inpatient (GIP) stays lack required information or had other vulnerabilities. According to OIG, hospice election statements did not always mention that the beneficiary was waiving coverage of certain Medicare services by electing hospice care or that hospice care is palliative rather than curative, which is required. In 14 percent of GIP stays, the physician did not meet requirements when certifying that the beneficiary was terminally ill and appeared to have limited involvement in determining that the beneficiary’s condition was appropriate for hospice care. OIG recommends that hospice providers improve their election statements and ensure that physicians meet requirements when certifying beneficiaries for hospice care. Continued on next page

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Continued from previous page The following are some resources to assist providers: 

Hospice Payment System Booklet: https://www.cms.gov/Outreach-and-Education/Medicare-LearningNetwork-MLN/MLNProducts/Downloads/hospice_pay_sys_fs.pdf.

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Documentation Requirements for the Hospice Physician Certification/Recertification: https:// www.cms.gov/Outreach-and-Education/Medicare-Learning-Network-MLN/MLNMattersArticles/ Downloads/SE1628.pdf.

For further information, contact Patrick Conole at (518) 810-0661 or pconole@hcanys.org.

CMS Posts Guidance on Cybersecurity The U.S. Centers for Medicare and Medicaid Services (CMS) Center for Clinical Standards and Quality/Survey and Certification Group has posted guidance to State Survey Agency Directors on recommendations to providers regarding cybersecurity. The guidance, including additional resources, is at https://www.cms.gov/Medicare/Provider-Enrollment-andCertification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-17-17.pdf. To protect against cybersecurity threats, CMS recommends that agency leadership review current policies and procedures to ensure adequate plans are in place in the event of an attack. For instance, most IT directors and policies require systems to be shut down, and specific timelines to notify appropriate state and federal agencies and state Health Departments. Additionally, some providers have shared best-practices and mitigation methods, which include retraining of staff on use of non-electronic methods, such as written discharge instructions, care planning and medical records. CMS notes that while the new Emergency Preparedness Requirements for Medicare and Medicaid Participating Providers and Suppliers (see the September 29, 2016 edition of The Situation Report) does not specifically address elements of cyber-security, the regulation requires providers and suppliers to have an emergency plan and risk assessment based on an “all-hazards” approach. An all-hazards approach is an integrated approach to emergency preparedness planning that focuses on capacities and capabilities that are critical to preparedness for a full spectrum of emergencies or disasters. CMS encourages providers to consider cybersecurity as an element in their emergency plans, risk assessments, and annual training exercises. While not a requirement, facilities may consider adding cybersecurity protocols to their policies and procedures. Additionally, given the regulation’s requirement for facilities to establish communication plans – which also includes alternate means of communication – the facility could consider addressing elements, within their policies and procedures, for how to communicate with staff and different departments in the event computers or other means of communication are inaccessible. Finally, facilities may also choose to conduct table-top exercises, with or without assistance from health care coalitions or state emergency officials, which are focused on cybersecurity and how to continue operations in the event of a cyber-attack.

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2017 Poverty Levels Released The Office of the Assistant Secretary for Planning and Evaluation of the U.S. Department of Health and Human Services has released the 2017 federal poverty levels. These amounts, along with prior years, are posted at https://aspe.hhs.gov/poverty-guidelines. The annual levels are: $12,060 (up from $11,880 in 2016) for individuals and $16,240 (up from $16,020) for couples. These levels are used to calculate one of the charity care requirements for CHHAs and to determine eligibility for the Medicare Savings Programs and other federal benefits.

Resources 

“Annual Update of HCPCS Codes Used for Home Health Consolidated Billing Enforcement,” by the

U.S. Centers for Medicare and Medicaid Services https://www.cms.gov/Outreach-and-Education/Medicare-Learning-Network-MLN/ MLNMattersArticles/Downloads/MM9771.pdf 

“Health Care Fraud and Abuse Control Program Annual Report for Fiscal Year 2016,” by the Department of Health and Human Services And The Department of Justice http://go.usa.gov/x9yPU



“Medicare Advantage: Limited Progress Made to Validate Encounter Data Used to Ensure Proper Payment,” by the U.S. Government Accountability Office http://www.gao.gov/assets/690/682145.pdf

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Applying for Medicaid Personal Care Services and CDPAP Outside NYC – 2016 Changes,” by the NY Legal Assistance Group http://www.wnylc.com/health/entry/39/

For more information, contact Andrew Koski at (518) 810-0662 or akoski@hcanys.org

State Advocacy Leadership Events February 6 & 7, 2017 Albany, New York

Tuesday, February 7, 2017 8:00am – 4:00pm

HCA State Lobby Day Room 711-A Legislative Office Building Albany, New York

Tentative Lobby Day Itinerary 8:00 AM –NOON

State Leaders Address HCA Board and Members NOON – 12:30 PM – Lunch 12:30 PM – 4:00 PM

Advocacy Day Leadership Appointments

Monday, February 6, 2017 5:00 PM – 6:30 PM

HCA PAC Reception HCA Office 388 Broadway, 4th Floor Albany, New York 12207 Drinks and heavy hors d’evours will be served at the reception. A $50 HCA PAC donation is requested for your participation. *Corporate and LLC checks are acceptable under NYS Election Law. 501(c)(3) Organizations are prohibited from making political contributions. Contributions to the PAC are not tax deductible.

HCA asks member executives and leadership staff to make appointments during this time period to meet with representatives from your district. HCA is also arranging specific leadership appointments for the HCA Board of Directors to meet with key legislators. If you would like HCA to assist you in arranging legislative visits for this afternoon, please contact Jenny Kerbein at jkerbein@hcanys.org with your specific requests and availability. REGISTRATION Participant’s Name:_________________________________________________ Organization:_____________________________________________________ Email:___________________________________________________________

Participant(s) will attend: ______ *PAC Reception on February 6th @ $50 per person ______ State Lobby Day on February 7th (No Fee) HCA PAC RECEPTION DONATION INFORMATION

HOTEL INFORMATION Renaissance Hotel State Street, Albany, NY 12207 HCA has arranged for a room block at the Renaissance Albany Hotel located at 144 State Street, Albany, NY. HCA’s Group rate is $209/night and must be booked before January 6, 2017. To make your reservation, call (888) 236-2427. Early reservations are encouraged as the hotel is likely to sell out the evening of February 6.

*Please make personal check payable to: HCA PAC and mail to 388 Broadway, 4th Floor, Albany, NY 12207; or pay by personal credit card: ______ American Express

______ MasterCard

______ VISA

(3 digit code on reverse) __________ Exp. Date ____/____/____ Card Number _____________________________________________________ Cardholder’s Name ________________________________________________ Cardholder’s Address ______________________________________________ ________________________________________________________________ Signature ________________________________________________________

FAX completed form to (518) 426-8788

HOME HEALTH

Conditions of Participation READINESS

WEBINAR â€˘

Prepare Now for Implementation of the New Home Health Conditions of Participation (CoPs) This webinar, free of charge for HCA members ($79 for non-members), will provide you with a deeper understanding and implementation plan for the newly finalized Home Health CoPs, which include sweeping changes affecting virtually all aspects of home care operation. The program, presented by home care clinician and operational expert Trish Tulloch, provides vital information for executive, clinical, compliance and operational team members across your entire organization. The long-anticipated CoPs are scheduled to take effect on July 13, 2017. These are the first major changes to the CoPs since 1989, but providers have a very short timeframe to plan for and implement these significant revisions that impact both operational and financial planning for all home health providers.