March 5, 2018 Edition of The Situation Report

HCFTP FUNDS

LI SEPSIS SESSION

BENCHMARKING DATA

HCA comments to CMS in support of proposed payment changes allowing for nonskilled home care coverage under Medicare Advantage.

The deadline to apply for $203M pool of transformation funds has been extended to March 22, plus other information for applicants.

This is the last call to register for our final scheduled “Stop Sepsis at Home” training sessions this week at two Long Island locations.

HCA posts new home care and hospice benchmarking data to our HCA Data page. The reports are provided in conjunction with the Council of State Home Care Associations.

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HCA COMMENTS ON MA COVERAGE CHANGE

Your Source for HOME CARE News, Policy and Advocacy

Vol. 3, Issue 10 | March 5, 2018

COMING UP ‘Stop Sepsis at Home’ Regional Training Sessions March 8, 2018 Port Washington March 9, 2018 Farmingdale Downstate CHHA Member Forum Friday, March 16, 2018 NYC Senior Financial Managers Forum March 22, 2018 Albany Register for these and other programs online at https://hcanys.org/eventseducation/ upcoming-events.

Legislative Budget Response Taking Shape; HCA Pressing Hard on Priority Issues HCA members: engage with your legislators now!

HCA’s budget efforts with the Legislature further intensified over this past week and weekend, as both the Senate and Assembly close in on their internal positions for their upcoming one-house budget bills and ensuing negotiations.

HCA and government-relations counsel at Hinman Straub met with principal legislative health offices in the Senate and Assembly this week to more deeply discuss the impacts See BUDGET p. 2

In Washington Advocacy Effort, HCA Presses HHGM Corrections, F2F Relief Measure to Protect Home Care HCA President Joanne Cunningham joined peers nationwide on federal advocacy efforts in Washington last week, pushing for changes to a recently passed temporary spending measure that has major implications for home care. This measure was approved by both Houses of Congress and signed into law on February 8, 2018.

See WASHINGTON p. 4

INSIDE HCA Urges Priorities, Fixes, as Legislative Budget Responses Take Shape.........1 HCA Presses HHGM Corrections, F2F Relief Measure.......................................1 HCA Comments on Proposal for MA Coverage of Non-skilled, In-Home Supports.....5 Health Care Facility Transformation Program Deadline Extended....................6 Register Now for Final Scheduled Sepsis Training Sessions on LI This Week.......8 Save the Dates for “HCA: 40 Years Strong” Annual Conference on May 9-11......9 HCA and Council Provide Home Health, Hospice Benchmarking Data............10 OMIG Resumes Semiannual TPL Case Requests...........................................10 New HCA Compliance Roundtable Series Begins 4/26.....................................11

CMS Holds Webinar on Draft Templates for F2F and Plans of Care........................12 New Medicare Cards To Be Mailed....................................................................13 All FIs Must Enroll in Medicaid Now...................................................................14 CMS Forum Offers Updates on Rural Add-on, HHGM Report, Quality Measures.....15 Important Upcoming Deadlines......................................................................17 LawTalk: Avoiding a Wage-hour Lawsuit.............................................................18 Managed Care Appeal Change Effective May 1.................................................19 NYSHealth Funding Available..........................................................................20 NGS Updates...................................................................................................20 Resources......................................................................................................21

The Situation Report: the Home Care Association of New York State BUDGET from p. 1 of the Governor’s budget proposals, and to walk-through language and details of our counter proposals. These positions are summarized below.

Reject LHCSA Contract Limit, Reject MLTC Cuts and Adverse Actions HCA continues to urge the rejection of licensed home care services agency (LHCSA) contract limitations on managed long term care plans (MLTCs) and a more deliberative examination of the root issues prompting this proposal. We also continue to urge rejection of: the fiscal cuts and new administrative, audit and reporting overburdens on MLTCs; cuts/collection of MLTC reserve funds above the minimum levels; the ban on provider/MLTC marketing; and others.

Modify Open-ended Telehealth Proposal HCA has presented critical language to modify the Governor’s telehealth proposal. The Governor’s proposal would authorize in-home telehealth on a wide-open basis across all health sectors.

HCA supports the potential for patient and system benefit from removing barriers to other providers wishing to deliver telehealth in the home, such as mental health practitioners and physicians.

However, the Governor’s proposal is wide-open and unguided with regard to what telehealth services may be provided by whom and for what purposes in the home. HCA is extremely concerned about the structure of this proposal and asks that it be clarified to ensure that telehealth providers act within their lawful service and licensure scope, and thus not inadvertently or intentionally use telehealth to “virtually” cross licensure/service standards and boundaries. We have provided language for this safeguard, clarifying that in-home services that are “home care” services delivered via telehealth must comply with Article 36 licensed/certified home care standards and be delivered by an Article 36 provider.

Modify Executive Budget Proposals that Seek to Change MLTC Benefits Analysis is showing wide variation in the projected MLTC-specific impact of the Governor’s proposals to carve out permanent nursing home residents from MLTC eligibility, carve out transportation, and increase the minimum Uniform Assessment System (UAS) score from 5 to 9 for purposes of MLTC eligibility. In addition, there is strong 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 acardillo@hcanys.org Patrick Conole Vice President, Finance & Management pconole@hcanys.org Andrew Koski Vice President, Program, Policy & Services akoski@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 & Graphic Design jkerbein@hcanys.org Billi Wilson Manager, Meetings & Events bwilson@hcanys.org Teresa Brown Administrative Assistant tbrown@hcanys.org

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support of the nursing home carve-out by the nursing home industry, and major Medicaid savings on the table from this proposal.

health care system, collaboration opportunities, and other positive improvements.

As such, some would benefit and some would be harmed by the Governor’s current proposals.

Additional background on all of HCA’s proposals was provided in the February 26 edition of The Situation Report.

To support the beneficiaries and attempt to safeguard those hurt by these proposals, HCA has advanced recommendations to more surgically tailor where and how these proposals might apply and to allow for MLTC plan-specific options to retain or to allow the carve-out of such services, pending which action best supports (or avoids harm) to the plan and its enrollees.

In the case of the Governor’s proposed UAS change, which would not take effect until October, HCA is urging language for an in-depth access-to-care, fiscal and program impact analysis. This would enable the Legislature to first determine the appropriateness and implications of the proposal, and, on a more informed basis, to choose whether the proposed change should advance, be replaced or denied.

Expand the Health Care Transformation Pool and its Applicability HCA presented changes to the Governor’s proposed Health Care Transformation Pool language. HCA’s changes would increase the set-aside for community health providers to at least $106 million (or at least one quarter of the total pool), and expand critical flexibility in the use of funds, including for new levels of clinical and health information technology for home care.

HCA Proposals for Workforce and Proactive Home Care Roles HCA also drafted and provided language for proactive proposals in support of the workforce (providing both funding and a diverse set of supportive program actions), as well as language providing for elevation of home care roles in the

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Your Advocacy Critical!

As both houses move to finalize their budget positions over this next week, and work to print and act on their one-house budget bills, it is essential that every concerned provider, MLTC and allied organization in HCA’s membership call, write, and meet with legislators to discuss the serious need to omit and/or modify (as applicable) the Governor’s budget proposals. HCA guidance has been provided through its Legislative Action Center where you can find advocacy action item campaigns. See http://p2a.co/ CrvM1NC. Once the positions are finalized over this coming week and the one-house bills are prepared, it will be extremely difficult to mitigate or add proposals. So time is critical!

Every provider and every member of your staff, and every concerned individual connected with your services, must reach out to legislative officials and to key health leadership offices to weigh in. Do not be the one in silence whose call, letter or meeting might have otherwise made the difference. Act today; act now!

As these internal legislative discussions and ensuing negotiations intensify through the course of this week, HCA will continue our advocacy full-bore, and will keep the association membership apprised of all material developments.

The Situation Report: the Home Care Association of New York State WASHINGTON from p. 1 In addition to HCA were advocates representing the National Association for Home Care and Hospice (NAHC), the Partnership for Quality Home Healthcare, and the Visiting Nurse Associations of America (VNAA)/ElevatingHOME. The February 8 spending bill’s home health provisions included changes (and, in some cases, protections) surrounding a new payment system (the Home Health Groupings Model, or HHGM), as previously reported to the membership.

Under the bill: HHGM would be implemented in a budget-neutral manner; the current 60-day home health episode would be replaced with an untested 30-day “unit of service”; payment changes would be authorized to reflect behavioral changes; and the Secretary of Health and Human Services would be authorized to include home health documentation in the full record of a patient (including the physician record) in meeting the Medicare face-to-face (F2F) documentation requirement.

In addition, the new spending bill signed into law includes a limited extension of the federal rural payment add-on to assist rural home health providers. HCA had vigorously advocated for this provision, as well as for the F2F relief, and we educated the entire Congressional Delegation about the need for budget neutrality and other protections in any payment system change.

This most recent advocacy push is focused on “technical corrections” and other modest changes to the newly enacted law surrounding the HHGM and F2F. Specifically, HCA is advocating for: 1. Correcting the “30-day unit of service” with a “30-day unit of payment.” Industry representatives, in their negotiations on this language, indicated that the intent was to allow CMS to change the payment to a 30day unit of payment, while still preserving the 60-day episode of care (with other requirements anchored to that 60-day episode).

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2. Adjusting payments in HHGM on the basis of objective evidence. This correction ensures that any payment modifications would be based on reliable and objective data which reflects actual changes in patient care and practices, and not on the basis of predicted behavioral changes.

3. Additional time for analysis and stakeholder input. This change ensures that the new payment system rulemaking process would not occur any earlier than the date in the new law (January 1, 2020).

4. Establishing an optional demonstration program. This change would allow for CMS to establish a demonstration program to test the new payment model.

5. Ensuring that home health documentation is included as part of the physician certification and patient record. This technical change requires CMS to instruct contractors to include home health documentation as part of the physician record documentation surrounding the patient’s certification for services rather than allowing this information to be an optional part of the full record, for purposes of F2F compliance.

In meetings with the health staff of Senator Charles Schumer and Congressman Tom Reed (a Member of the House Ways and Means Committee), HCA advocated for these changes and corrections to the new law, emphasizing the impact on home care providers in New York State.

HCA and our federal association partners will continue pressing Congress to support this relief package, and HCA will be again visiting New York Congressional Delegation Members in upcoming meetings.

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HCA Voices Support, Recommendations on Proposal Allowing MA Coverage of Non-skilled, In-Home Supports HCA this week voiced support for a proposal to add non-skilled in-home supports as a supplemental benefit under Medicare Advantage (MA).

Our comments – to the U.S. Centers for Medicare and Medicaid Services (CMS) – also include recommendations for implementation of this potentially transformative change. HCA’s comments can be downloaded here: https://hca-nys.org/wp-content/uploads/2018/03/CMS-Call-Letter_HCAsComments_030218-FINAL.pdf.

CMS recently announced the proposal in a notice to MA plans on 2019 payment changes, saying that it intends to expand the scope of the “primarily health related supplemental benefit standard.” Such an expansion would cover services or items that “diagnose, prevent, or treat an illness or injury, compensate for physical impairments, act to ameliorate the functional/psychological impact of injuries or health conditions, or reduce avoidable emergency and health care utilization.”

This definition is intended to be interpreted very broadly by CMS. As such, HCA has specifically urged CMS to allow MA coverage of home health aide (HHA) and personal care aide (PCA) services to Medicare beneficiaries who don’t also require skilled services.

Home care industry representatives and associations (including HCA) have greeted this proposal with optimism and support, noting that this new supplemental benefit could go far in reducing unnecessary health care costs, including avoidable hospitalization, nursing home placement and physician use.

In our comments to CMS, HCA recommends that the new policy change prompt a thorough review of all current home care services available through MA plans, encouraging CMS to address any delays in timely service authorizations for current home care benefits offered by the plans. HCA recommends that these issues be addressed by CMS as it rolls-out the new supplemental HHA/PCA home care services in 2019 as a result of the policy change.

In addition, HCA recommends that CMS consider making this new supplemental benefit of HHA/PCA services available to Medicare fee-for-service beneficiaries as well. Parity of this home care benefit across the Medicare programs would ensure that all beneficiaries have the same access to important home care services and supports which would benefit the Medicare program as a whole, and provide positive health and quality of life benefits to all.

HCA also recommended that CMS ensure the highest quality of care and service delivery by stipulating that only Medicare certified agencies and state-licensed agencies have the opportunity to deliver these services.

Finally, HCA recommended that CMS implement an aggressive and proactive outreach strategy as part of this policy change, and encourage MA plans to screen all Medicare beneficiaries to determine their eligibility and need for skilled home health services as well as these HHA/PCA supplemental benefits.

“HCA strongly believes that this new expansive language points clearly to coverage of HHA/PCA in-home services and supports, portable wheelchair ramps and other assistive devices and modifications when

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patients need them,” we write. ”Specifically, HCA urges that new supplemental benefits should include these home care services that help people to live independently in their community, and includes assistance with activities of daily living, such as assistance with bathing, toileting, transferring, dressing, feeding, etc., and instrumental activities of daily living, including meal preparation, bill paying, shopping, cleaning, etc.”

We add: “All of these services, which are a vital cornerstone of the home care continuum of services, positively impact physical and mental health of frail, disabled and elderly patients, and improve quality of life.”

HCA believes that this new supplemental MA benefit has enormous potential to ensure coverage of needed home care services and supports for an aging, disabled and frail Medicare population. HCA has already discussed this new MA policy change with the health care team of Senator Charles Schumer’s office in a meeting this week, and we look forward to continued discussion with the Senator and the entire New York Congressional Delegation to promote wide adoption of this policy in MA plan coverage.

HCA will also be offering further information for the membership in upcoming months to examine ways that the home care community in New York State can prepare for this 2019 policy change and make it widely available to New York’s Medicare population.

Health Care Facility Transformation Program Deadline Extended Extensive FAQs Posted The deadline for submitting proposals for the Health Care Facility Transformation Program (Phase II) has been extended from March 14 to Thursday, March 22, 2018 at 4 p.m.

In addition, an extensive Question and Answer (Q&A) document has been posted.

The funding announcement and webinar materials are at https://grantsgateway.ny.gov/ IntelliGrants_NYSGG/filenetdocretrieval.aspx?docid={7b17a743-01a8-4913-b896-f43c393b9f34}.

The Q&As are at https://hca-nys.org/wp-content/uploads/2018/03/Health-Care-Facility-TransformationProgram-II_QAs_030218.pdf.

Some of the topics covered include: capital versus non-capital projects; community engagement; debt relief; eligible applicants; eligible expenses; feedback on previous applications; long-term financial stability; match requirements; number of applications that can be submitted; previously submitted projects; and more.

Some important information from the Q&As includes: 

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Information technology expenses that are capital in nature are eligible expenses. Cloud-based and certain software expenses, however, are not eligible expenses because they are considered a general operating expense. Terminals and laptops used to access a cloud-based system would be eligible expenses as long as they have an expected useful life of three years or more. Staff training

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to implement an Eligible Project, such as “train the trainer” costs, is an eligible expense, as opposed to general staff training costs that are not. 

Entities that received awards under the Health Care Facility Transformation Program Phase I are eligible to receive awards under Phase II.

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In the event that funds are not sufficient to support all applications in the highest tier for which funding is available, the Request for Applications (RFA) outlines how the state Department of Health (DOH) will select applications from within that tier (Section V. Completing the Application, C. Review and Award Process). Among other criteria, priority may be given to projects involving community- and facility-based post-acute care and long-term care support services that: reduce unnecessary emergency department visits or inpatient readmissions through the innovative use of technology or workforce utilization; or establish collaborations across health care provider types; or provide services to patients/residents in a more home-like setting; or result in long-term financial sustainability of an essential community provider.

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The application must be submitted via the Grants Gateway. Questions about the Gateway can be directed to grantsgateway@its.ny.gov or (518) 474-5595.

As outlined in previous Situation Report articles (on January 8, January 12 and February 5), the Transformation Program provides grants for capital projects, debt retirement, working capital or other noncapital projects directly related to a capital project that facilitate health care transformation activities, including acquisition or other activities intended to create financially sustainable systems of care or preserve or expand essential health care services. Grants will not be made to support general day-to-day operating costs unrelated to the start-up expenses of the eligible project.

A total of up to $203,782,888 is available. Due to advocacy by HCA and other community health providers, a minimum of $75 million was required to be awarded to community-based providers – defined as home care providers, diagnostic and treatment centers, mental health and alcohol and substance abuse treatment clinics, and primary care providers.

However, $28,004,493 from the Statewide II appropriation was already awarded to community-based health care providers for Statewide I. As a result, the RFA indicates that a minimum of $46,995,507 ($75 million minus $28 million) must be awarded to community-based health care providers for Statewide II. The Governor’s proposed budget for 2018-19 includes another $425 million for this program, with a minimum of $60 million for community-based care. HCA is also advocating that the minimum for community-based care be no less than 25 percent, or $106.25 million. (See related p. 1 story on HCA’s budget advocacy.)

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Last Call: Register Now for Final Scheduled Sepsis Training Sessions on LI This Week The final installments of our currently scheduled sepsis training sessions are coming up later this week, on March 8 and 9; however, there’s a lot more to come for current and prospective users of HCA’s sepsis screening tool in the coming weeks and months as part of our ongoing “Stop Sepsis at Home” initiative.

As far as in-person trainings, this is the last chance to sign up for our final two scheduled programs, on Long Island: in Port Washington (March 8) and Farmingdale (March 9).

If you haven’t yet attended one of these sessions and your agency provides services on Long Island, please make sure that you and your clinical teams register today by selecting either the Port Washington or Farmingdale locations on our online form here: https://www.surveymonkey.com/r/SepsisRegionalTrainings.

These sessions are free of charge, and they provide you with both the broad perspectives as well as the detailed technical training to begin using HCA’s first-in-the-nation home care sepsis identification tool and protocols that will make your agency a leader in combatting the sepsis crisis as well as a valuable partner to hospitals, physician practices and payors.

HCA’s “Stop Sepsis at Home” initiative is supported by a grant from the New York State Health Foundation, with collaboration and technical support from IPRO, the Rory Staunton Foundation for Sepsis Prevention, the Sepsis Alliance, individual clinician leaders, and others on our project steering committee.

To learn more, please visit our website for this initiative at www.stopsepsisathomeny.org.

What’s Next While this week marks the last of the scheduled in-person trainings, HCA will be announcing other events, conference calls, and/or webinars related to our “Stop Sepsis at Home” initiative, including possible additional in-person trainings, if necessary.

If you could not attend one of our in-person trainings, you can still participate in our sepsis program and obtain authorization to use HCA’s sepsis screening tool. All you have to do is view the webinars that HCA conducted with partners on this initiative. Archives of the webinars are on IPRO’s website at http:// atlanticquality.org/initiatives/sepsis-initiative/educational-eventswebinars/.

Attending a training session or viewing the complete set of webinars is a prerequisite for utilizing HCA’s screening tool, subject to a user agreement with HCA indicating that you have undergone training on behalf of your organization. The in-person sessions, however, provide an invaluable chance to interact directly with faculty from IPRO, HCA member and allied clinician leaders, partners from the Rory Staunton Foundation and Sepsis Alliance, as well as invited hospital, physician practice, EMS, and health plan representatives.

Please be on the lookout for announcements about conference calls, “office hours” for technical assistance, updates on sepsis data collection and findings, and more throughout the coming weeks and months.

If you have any questions, do not hesitate to contact any of the HCA staff or use the web-based e-mail form on our “Stop Sepsis at Home” website.

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HCA, Council of State Home Care Associations Provide Statewide Home Health and Hospice Benchmarking Data HCA, in conjunction with the Council of State Home Care Associations, has posted to the HCA Data Webpage (https://hca-nys.org/hca-data) national and New York State hospice and home health Medicare benchmarking statistics. (See the section titled “HCA/Council of State Home Care Associations Dashboard Data.”)

The reports include New York State aggregate and national home health and hospice Medicare benchmarks which were provided by BKD CPAs & Advisors, a contributing vendor for HCA and the Council.

The Home Health benchmarking report is from December 2017 and includes the following key national versus New York State performance indicators:     

Average Medicare episode cost; Average total visits per Medicare episode; Average skilled nursing costs per visit; Average non-routine medical supply cost per visit; and Number of agencies in the database

The Hospice benchmarking report is from January 2018 and includes the following key national versus New York State performance indicators:      

Average continuous care cost per day; Average routine care cost per day; Average inpatient respite care cost per day; Average general inpatient (GIP) care cost per day; Average overall cost per day; and, Number of hospices in database

HCA Data is a members-only webpage. It provides data reports to assist home care and hospice providers and managed care plans in their benchmarking efforts, understanding of system-wide trends, and access to reimbursement and premium rates. To visit the page, you must have an HCA member password. (If you do not know your password, please send a message to info@hcanys.org and we can send you one.)

OMIG Resumes Semiannual TPL Case Requests Using Traditional Appeals The state Office of the Medicaid Inspector General (OMIG) has resumed its semi-annual demand billing process for the second half of federal fiscal year (FFY) 2017.

Details are outlined in a letter (mailed via UPS on February 20, 2018) that most Medicare-certified home care providers should have received from OMIG and its Third Party Liability (TPL) contractor, the University of Massachusetts Medical School (UMMS).

The letter identifies which cases have been selected to undergo appeals (through demand billing), with dates of services that occurred in the third and fourth quarters of FFY 2017 only (April 1, 2017 through September 30, 2017 or the end of the episodic period billed to Medicaid).

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Continued from previous page UMMS’s letter also says providers should continue monitoring the status of their demand bill claim(s) once submitted. Providers are required to correct any claims that are rejected or suspended by the Medicare Administrative Contractor (MAC), National Government Services (NGS). In addition, providers are required to timely submit a complete medical record to NGS once the Additional Development Request (ADR) is issued.

A final remittance advice for each episode billed (by demand bill) will be issued within 60 days of the final bill submission to Medicare. Upon receipt of the final remittance advice, providers must send copies of the following documents to the TPL contractor, UMMS, within 10 business days: 

A copy of the original claim submitted to the MAC for each 60-day episode billed.

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A copy of the final claim remittance advice sent to you from the MAC.

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A copy of each medical record your agency submitted to the MAC upon the ADR request.

HCA members interested in knowing whether they should have received a letter from OMIG can e-mail HCA at info@hcanys.org.

For specific questions about the letters, contact UMMS’s Laurie Burns at (866) 626-7594.

New HCA Compliance Roundtable Series Begins 4/26 with Session on CHHA/LHCSA Survey ‘Hot Spots’ & Plans of Correction At our last Corporate Compliance Symposium, attendees responded eagerly to the idea of HCA hosting a less formal, roundtable discussion of home care, hospice and MLTC compliance issues for HCA member compliance officers and other management with responsibility over compliance issues.

Now, HCA presents the first in a series of such sessions, beginning on April 26 in New York City with a program entitled Tackling Survey “Hot Spots” and Plans of Correction. Please note that pre-registration is required using the form at the back of this week’s newsletter. (Please note that seating is limited.) That form is also posted on our website under “Events.”

The purpose of these sessions, for HCA members only, is to dive a little more deeply into specific compliance areas, guided by expert facilitators or panelists from the provider, consultant or regulatory and enforcement sectors.

For our inaugural roundtable program, on April 26 in New York City, our focus issue will be state surveys of LHCSAs and CHHAs, including common issues that agencies are cited for and tips and guidance for the development and implementation of effective plans of correction.

Panelists for this session will include:  

Andrea Brown, RN, President/CEO, AB Coaching and Consulting, Inc. Nancy Lisy, RN, Senior Health Care Consultant, Loeb & Troper Continued on next page

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Continued from previous page 

Rosemary Vander Wyde, RN, President, Vander Wyde Health Care Consultants

We encourage you to come prepared with questions for our panel and for HCA’s policy staff during this engaging discussion. Alternatively, you may submit your questions in advance by e-mailing HCA’s Andrew Koski (at akoski@hcanys.org) and we will pose these questions anonymously during the program. Please note in the e-mail subject line: “Compliance Roundtable.”

Tackling Survey ‘Hot Spots’ and Plans of Correction Fee: $59 Selfhelp Community Services 520 Eighth Avenue, 5th Floor New York, NY 10018 9:30 a.m. to 10 a.m. registration and breakfast 10 a.m. to noon program

CMS Holds Webinar on Draft Templates for F2F and Plans of Care Last week, the U.S. Centers for Medicare and Medicaid Services (CMS) held a webinar to review draft optional templates for documenting the face-to-face (F2F) encounter and the plan of care.

The documents are at https://www.cms.gov/Research-Statistics-Data-and-Systems/Computer-Data-andSystems/Electronic-Clinical-Templates/Other-Benefit-Templates/Other-Templates-home-health.html.

CMS stressed that these templates are optional/voluntary for home health agencies (HHAs) to use in full or to incorporate parts of them.

In addition, CMS posted Clinical Data Elements (CDEs) within a clinical template that will allow Electronic Health Record vendors to create prompts to assist practitioners in completion of the F2F and Plan of Care forms.

During the question-and-answer period, issues were raised about the extensive length of the F2F template that would preclude physician use; the duplicate information requested on the F2F and Plan of Care templates; the need to include a space for the home health clinician to sign the plan of care; how using these forms affects the documentation requirements for HHAs; whether physician input was obtained; and more.

CMS intends to make some revisions to the templates and is accepting comments and questions at clinicaltemplates@cms.hhs.gov. HCA has inquired if the Medicare Administrative Contractors have been informed about these forms and, if not, advocates that they should be brought into the discussions.

For more information, contact the HCA Policy staff.

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New Medicare Cards To Be Mailed The U.S. Centers for Medicare & Medicaid Services (CMS) will begin mailing new Medicare cards in April of 2018.

These cards will have new Medicare Beneficiary Identifiers (MBIs) instead of Social Security Number-based Health Insurance Claim Numbers (HICNs). The MBI will be used for all Medicare transactions, including eligibility status, claims, and billing.

The Medicare Access and CHIP Reauthorization Act (MACRA) of 2015 requires CMS to remove beneficiaries’ Social Security Numbers (SSNs) from Medicare cards by April 2019 to mitigate risk of identity theft.

Current beneficiaries will be mailed a replacement Medicare card and instructions, while individuals who are new to Medicare in or after April of 2018 will receive a new Medicare card with their MBI upon enrollment.

The following are some key points about this mailing process: 

The card will be mailed to the Medicare beneficiary’s address on file at the Social Security Administration (SSA). Medicare providers should ask their Medicare patients to contact their local SSA office to ensure their address is current.

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CMS has created a mailing schedule based on geographic location and other factors for all 50 states. The mailing schedule consists of seven waves, outlined in the job aid titled New Medicare Card Mailing Strategy at https://www.cms.gov/Medicare/New-Medicare-Card/NMC-MailingStrategy.pdf.

Medicare enrollees may start using their new Medicare cards and MBIs as soon as they receive them. The effective date of the new cards is the date the beneficiary became eligible for Medicare.

During a transition period from April 2018 through December 2019, CMS will recognize both MBIs and HICN. After January 1, 2020, beneficiaries, providers, and plans will no longer be able to use HICNs except for claims appeals and a few other limited purposes.

In preparation for the national transition from HICN to MBI, state agencies across the country are in the process of readying their respective Medicaid Management Information System (MMIS) and all associated downstream data systems to support usage of the MBI for “dual eligible” (Medicare and Medicaid) beneficiaries.

The state Department of Health is working to make programmatic changes in eMedNY for compatibility with the new Medicare cards issued to New York beneficiaries (currently slated for June 2018).

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Continued from previous page Downstream data partners are expected to make similar programmatic changes to their respective systems and to likewise work in concert with their respective stakeholder communities.

CMS has created an educational website on the new Medicare card project transition (see https:// www.cms.gov/medicare/new-medicare-card/nmc-home.html).

To help providers prepare for the transition beginning April 1, 2018, CMS suggests that providers review the new information about remittance advices. Beginning in October 2018, through the transition period, when providers submit a claim using a patient’s valid and active HICN, CMS will return both the HICN and the MBI on every remittance advice. The following are examples of different remittance advices: 

Medicare Remit Easy Print (Medicare Part B providers and suppliers): https://tinyurl.com/yce74et7.



PC Print for Institutions: https://tinyurl.com/ybhack4d.



Standard Paper Remits: FISS (Medicare Part A/Institutions), https://tinyurl.com/y89s24kg; MCS (Medicare Part B/Professionals), https://tinyurl.com/ycse6fzq; VMS (Durable Medicare Equipment), https://tinyurl.com/y8e6ax4d.

Starting January 1, 2020, providers will have to submit claims using MBIs (with a few exceptions), no matter the date of the service.

More information on the New Medicare Card is at https://www.cms.gov/Medicare/New-Medicare-Card/ Providers/Providers.html and in the February 2018 Medicaid Update at: https://www.health.ny.gov/ health_care/medicaid/program/update/2018/feb18_mu.pdf.

All FIs Must Enroll in Medicaid Now The state Department of Health (DOH) has advised HCA that all existing Fiscal Intermediaries (FIs), including those who contract only with managed care organizations, must enroll now in the Medicaid program and obtain a Medicaid provider number.

This is despite guidance that was distributed as part of the FI Authorization application process (applicable to new and existing FIs) which seemed to indicate that existing FIs should wait until their Authorization application was approved before applying for a Medicaid provider number.

FIs can enroll in Medicaid by completing the application at https://www.emedny.org/info/ProviderEnrollment/personal_care/index.aspx.

FIs should indicate “Managed Care Only (Non Billing)” on the application. Existing FIs should complete and submit the Medicaid enrollment application immediately as it will take some time for it to be processed; if the existing FI does not obtain a Medicaid provider number, it will face termination of its contracts with managed care plans sometime over the summer.

If FIs have already applied for a Medicaid provider number or already have one for their FI, including via a contract with local departments of services, there is no need to apply again. If an entity has a Medicaid

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provider number for its LHCSA, but not for its FI, it needs to apply for a separate Medicaid provider number for its FI. Entities that don’t currently provide FI services but have submitted an FI Authorization application to become an FI should wait for a determination by DOH on their application before enrolling in Medicaid.

HCA has reached out to DOH and requested that it issue guidance on this issue to educate the existing FIs who are not aware of the requirement to enroll in Medicaid now.

The Medicaid enrollment requirement was part of the federal CURES Act and HCA has covered this issue many times.

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

CMS Forum Updates on Rural Add-on, HHGM Report, Quality Measures and More The U.S. Centers for Medicare and Medicaid Services (CMS) held a Home Health and Hospice Open Door Forum on February 28, 2018. The following is a summary of some key issues.

Claims Adjustments for 2018 Home Health Rural Add-on Payments The Medicare Administrative Contract (MAC) software system will begin adjusting for the rural add-on in accordance with a provision of the Bipartisan Budget Act of 2018, beginning with claims received on April 2, 2018. Shortly after that date, MACs will begin reprocessing previous claims from this year which are also eligible for the rural add-on. According to CMS, providers do not need to take any further action.

Home Health Technical Expert Panel Meeting Materials Abt Associates convened a Technical Expert Panel (TEP) on February 1, 2018 to collect perspectives, feedback, and recommendations from a wide variety of industry experts and representatives regarding the public comments received on the Home Health Groupings Model (HHGM), as described in the 2018 Home Health Prospective Payment System (HHPPS) Proposed Rule. The TEP materials are now available for download at: https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/HomeHealthPPS/ Downloads/HH-PPS-HHGM-TEP-materials.pdf. Any questions or comments on the TEP materials can be emailed to Abt Associates at HomeHealth@abtassoc.com.

When asked about next steps for the TEP, CMS said a summary of the TEP is being developed and will be released at a date to be determined and that CMS is still considering its plans for the TEP. Quality Measure Update Specs for Pressure Ulcers An updated quality measure specifications document is now available for the cross-setting measure “Percent of Residents or Patients with Pressure Ulcers that are New or Worsened.” It is available at: https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/ HomeHealthQualityInits/HHQIQualityMeasures.html. The measure specification logic has not changed but language has been added to clarify how valid skips are accounted for in the measure denominator.

Continued on next page

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Volume 3, No. 10 March 5, 2018 

Continued from previous page Changes to the On-demand CASPER Reports CMS is in the process of making changes to reflect the removal of measures as reflected in the HHPPS rule.

New Algorithm for “Timely Initiation of Care” to Align with CoP Changes The Medicare Conditions of Participation (CoPs), effective January 13, 2018, included a change to resumption of care (ROC) dates for patients returning to home health following an inpatient stay.

Specifically, the revised guidance allows for a physician ROC date as an alternative to the fixed 48-hour timeframe for the post-hospital reassessment.

To align with this CoP change, CMS has posted updated logic for the Timely Initiation of Care process measure in the “Downloads” section of the following website: https://www.cms.gov/Medicare/QualityInitiatives-Patient-Assessment-Instruments/HomeHealthQualityInits/Home-Health-QualityMeasures.html. With this update, an episode will also be included in the numerator when the physicianordered ROC date is later than two days after inpatient stay and the agency completes the ROC assessment on the physician-ordered ROC date. Use of this new calculation logic will be effective for quality episodes that begin on or after January 13, 2018.

This change will be reflected in the Quality of Patient Care Star Rating and Home Health Compare Preview Reports available in September 2018 for the January 2019 Home Health Compare update. Also, in September, CMS will retroactively apply these specifications to the confidential feedback and Review and Correct reports available through CASPER. Low Volume Appeals Opportunity Announcement On February 5, 2018, CMS started accepting Expressions of Interest for the Low Volume Appeals (LVA) settlement process. The LVA settlement option is for providers, physicians, and suppliers (appellants) with: 

Fewer than 500 appeals pending at the Office of Medicare Hearing and Appeals and the Medicare Appeals Council at the Departmental Appeals Board, combined, as of November 3, 2017; and



A total billed amount of $9,000 or less per appeal.

Additional information on the LVA process can be found at http://go.cms.gov/LVA or by writing to medicaresettlementfaqs@cms.hhs.gov. HCA has written about this new option in other recent editions of The Situation Report.

Electronic Submission of Hospice Notices of Election The previous error with submission of hospice Notices of Election (NOE) via the electronic Data Interchange (EDI) has been successfully resolved on February 5, 2018. Hospices may submit NOEs electronically or through Direct Data Entry (DDE).

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Volume 3, No. 10 March 5, 2018 

Important Upcoming Deadlines

Requirement/Change

Effective/ Due Date

More Information

Home Care, Fiscal Intermediaries and other providers who contract with Managed Care Organizations must be enrolled in Medicaid

Still being accepted, but providers are advised to submit now

https://www.emedny.org/info/ProviderEnrollment/ManagedCareNetwork/index.aspx

Posting of OSHA Form 300A

Feb. 1 to April 30

https://www.osha.gov/recordkeeping/RKforms.html

CMS Low Volume Appeals Settlement for CHHAs with NPIs ending in an even number

Expression of Interest must be submitted from Feb. 5 to March 9

https://www.cms.gov/Medicare/AppealsͲandͲGrievances/OrgMedFFSAppeals/AppealsͲSettlementͲ Initiatives/LowͲVolumeͲAppealsͲInitiative.html

Wage Parity certification forms due from CHHAs, LTHHCPs and managed care organizations to DOH; from LHCSAs to their contracted CHHAs, LTHHCPs and managed care organizations; and from Fiscal Intermediaries to their contracted managed care plans

March 1, 2018

https://www.health.ny.gov/health_care/medicaid/redesign/mrt_61.htm

Submission of Conflict of Interest (COI) Compliance Implementation Plan forms

by NHTD/TBI providers to their Regional Resource Development Centers

March 1, 2018

https://hcaͲnys.org/wpͲcontent/uploads/2018/01/ConflictͲofͲInterestͲComplianceͲImplementationͲPlanͲ 1.docx; https://hcaͲnys.org/wpͲcontent/uploads/2018/01/COIͲComplianceͲImplemenationͲPlanͲPowerͲ Point.pdf

Medicare Bundled Payments for Care Improvement Advanced model

Applications due March 12, 2018

https://innovation.cms.gov/initiatives/bpciͲadvanced

NYS Health Foundation Special Funds RFP

March 13, 2018 for online inquiry form

https://nyshealthfoundation.org/rfp/2018ͲspecialͲprojectsͲ fund/?utm_source=Reminder+to+Apply%3A+2018+SPF+RFP&utm_campaign=2018+SPF%3A+2nd+Remind er+to+Apply+%28w%2Fvideo%29+Feb+2018&utm_medium=email

CMS Low Volume Appeals Settlement for CHHAs with NPIs ending in an odd number

Expression of Interest must be submitted from March 12 to April 11

https://www.cms.gov/Medicare/AppealsͲandͲGrievances/OrgMedFFSAppeals/AppealsͲSettlementͲ Initiatives/LowͲVolumeͲAppealsͲInitiative.html

Health Care Facility Transformation Program

Applications due March 14, 2018

https://grantsgateway.ny.gov/intelligrants_NYSGG/module/nysgg/goportal.aspx?NavItem1=4&ngoID=500 0979

Criminal history record check requirements apply to hospice

April 1, 2018

https://www.health.ny.gov/facilities/home_care/advanced_home_health_aides/docs/ahha_legislation.pdf

Submission of COI Compliance Implementation Plan forms by Regional Resource Development Centers to state Department of Health

April 1, 2018

https://hcaͲnys.org/wpͲcontent/uploads/2018/01/ConflictͲofͲInterestͲComplianceͲImplementationͲ Plan.docx; https://hcaͲnys.org/wpͲcontent/uploads/2018/01/COIͲComplianceͲImplemenationͲPlanͲPowerͲ Point.pdf

Start of Transition Period for Using Health Insurance Claim Number (HICN) or Medicare Beneficiary Identifier (MBI)

April 1, 2018

https://www.cms.gov/Medicare/NewͲMedicareͲCard/index.html

Implementation of Universal Billing Codes for Home and CommunityͲBased Long Term Care Services under Managed Care

April 1, 2018

https://www.health.ny.gov/facilities/long_term_care/reimbursement/letters/dal_2017Ͳ12Ͳ 07_billing_codes.htm

Community First Choice Option Services Available to Medicaid Managed Care Enrollees

April 1, 2018

https://www.health.ny.gov/health_care/medicaid/redesign/community_first_choice_option.htm

Healthcare Personnel Influenza Vaccination Report

May 1, 2018 for personnel employed from October 1, 2017 to March 31, 2018

immunize@health.ny.gov or (518) 473Ͳ4437

NYS Health Foundation Special Funds RFP

May 16, 2018

https://nyshealthfoundation.org/rfp/2018ͲspecialͲprojectsͲ fund/?utm_source=Reminder+to+Apply%3A+2018+SPF+RFP&utm_campaign=2018+SPF%3A+2nd+Remind er+to+Apply+%28w%2Fvideo%29+Feb+2018&utm_medium=email

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LawTalk: Avoiding a Wage-hour Lawsuit

By Vincent E. Polsinelli and Christopher J. Stevens, Jackson Lewis PC When it comes to preventing wage and hour claims, including class actions, the best offense is frequently a good defense. (Please see HCA’s prior reports concerning the 24-hour live-in issues which are not addressed in this article.) Wise companies are proactive and take steps to identify and mitigate risk in order to prevent these actions before they are ever filed. This article is designed to help you do so. We will identify several mistakes that frequently give rise to such actions, and offer guidance on proactive steps that your company can take to avoid them and/or limit exposure.

Misclassification of nonexempt employees as exempt. Perhaps the most frequent setting in which wage/hour class actions arise is when exempt, salaried employees claim that they were misclassified as such, and are, therefore, entitled to unpaid overtime. Recently, the hottest flashpoints in this ongoing battle have been the application of the executive exemption to middlemanagement positions and the administrative exemption to office employees.

Employers that have exempt employees in such roles can, and should, consider taking affirmative steps to reduce their risk of facing a class action. These steps may include: 

Drafting detailed job descriptions that accurately reflect the duties of these employees;



Reviewing those job descriptions periodically to ensure continued accuracy; and



Having employees sign those job descriptions during annual reviews.

Employers should also consider conducting an audit (internal or external) of any positions identified as particularly risky. Protections an employer has under the attorney-client privilege are important when conducting such an audit, and should be kept in the front of one’s mind throughout the process.

Misclassification of employees as independent contractors. Federal and state departments of labor have been particularly aggressive on this front in recent years, seeking to reinforce their position that nearly all workers are employees (as opposed to independent contractors). Thus, while independent contractor arrangements can often provide significant benefits, they also invariably come with some element of risk.

In order to mitigate this risk, companies should scrutinize both independent contractor agreements and the economic realities of the relationship. Although the issue can get quite complex, a good starting point is to ask: Does the relationship more closely resemble an arm’slength transaction between two businesses or a more traditional employment relationship? In the

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former case, the individual is more likely to be a true independent contractor. In the latter, a finding that the person is actually an employee is a distinct possibility.

Off-the-clock work. The risk of being found liable for failure to pay for off-the-clock work has increased substantially as the workplace has become more mobile and technology-driven. Gone are the days when an employee could only work from the office. This is particularly true in the home care industry. This reality creates significant risks for employers that may be subject to claims that they failed to pay nonexempt employees for time worked off the clock, even after employees have punched out for the day.

In order to guard against this risk, it is critical to have a strong policy prohibiting off-the-clock work.

Employees should be presented with, and asked to acknowledge, this policy at the time of their hire. In the event that employees violate this policy, they must still be paid for any time actually worked, but the employee should also be disciplined for violating the policy. Progressive discipline should be applied if additional violations occur.

Knowledge is power. An awareness of the applicable laws – federal, state and local – and the risks that they create is imperative in order to be able to identify and address potential red flags. It is often said that “knowledge is power,” and that adage rings especially true in the context of preventing wage-and-hour class or collective actions.

Wise employers will work with counsel to identify and mitigate risk before it evolves into litigation. Unlike fine wines, wage and hour issues do not get better with time – especially in New York, where the statute of limitations for wage and hour claims can be as long as six years. If an employer becomes aware of a potential issue, ignoring it and hoping that nobody else will notice is never a winning strategy.

Each month, attorneys at Jackson Lewis (the firm that represents HCA as its counsel) will provide a brief, informational article on a legal topic relevant to HCA’s members. Please note that these LawTalk articles are for general, informational purposes, are not legal “advice,” and do not create an attorney-client relationship. Because each case is unique, the information provided should be considered to be general in nature, and should never be considered a substitution for legal counsel. Readers should not take, or refrain from taking, any action based on information in this article without first seeking legal advice from competent counsel.

Managed Care Appeal Change Effective May 1 The starting date has been pushed back for the new requirement that managed care enrollees request internal appeals with their managed long term care (MLTC) and/or mainstream Medicaid managed care plans before requesting a Fair Hearing. The date was moved to May 1, 2018, from April 1, 2018.

There is a narrow exception to this new requirement. It allows a member to request a Fair Hearing directly without receiving the plan’s appeal decision, under a “deemed exhaustion” provision. Deemed exhaustion applies when the managed care plan does not adhere to the notice and timing requirements; in such situations, the enrollee may initiate a state Fair Hearing.

Continued on next page

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Continued from previous page This change, covered in previous Situation Report articles, is due to revisions in the federal Medicaid regulations released in May 2016.

The state Department of Health (DOH) will hold a webinar on this issue on March 28, 2018 at 1 p.m. to be repeated on March 30, 2018 at 10 a.m. Registration information should be available shortly.

DOH has created a webpage on the new requirements with FAQs, webinars, model notices and guidance for mainstream Medicaid managed care plans. The website is https://www.health.ny.gov/health_care/ managed_care/plans/appeals/index.htm.

More information is at http://www.wnylc.com/health/entry/184/ and http://www.wnylc.com/health/news/80/.

NYSHealth Funding Available The New York State Health Foundation (NYSHealth) is currently accepting applications for its 2018 Special Funds Request for Proposals (RFP).

Applicants must submit an online inquiry form to determine whether a proposed project fits the funding criteria.

The deadline for the online inquiry form is March 13, 2018. Selected organizations will be invited to submit full proposals, with a deadline of May 16, 2018.

NYSHealth Special Projects Fund awards are one-time, nonrenewable funding opportunities consistent with the Foundation’s mission to improve the health of all New Yorkers but outside of the Foundation’s main priority areas.

More details on the 2018 Special Funds RFP, including Frequently Asked Questions, are at https://tinyurl.com/ya9em4az.

NGS Updates National Government Services (NGS), New York’s Medicare Administrative Contractor (MAC), has recently provided the following updates on its website at: www.ngsmedicare.com.

Proper Use of the KX Modifier Related to Therapy Caps Therapy providers are required to determine if a Medicare beneficiary’s therapy cap has been met prior to submitting a claim. If the beneficiary’s cap has been met, the KX modifier may be appended to the service only when the patient requires additional medically necessary treatment under the exception guidelines; and only when documentation is available to support the need for the exception. To add the KX modifier to a denied claim when the exception guidelines are met, providers should initiate a claim adjustment in FISS/DDE. For KX modifier additions, providers will report a condition code D9 and note in remarks that they are adding the KX modifier. If providers are unable to initiate the adjustment in FISS/DDE, then utilize NGSConnex following the instructions Initiate Redeterminations.

Continued on next page

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Continued from previous page To assist providers in determining if your patient is approaching or has exceeded the therapy cap, NGS has self-service options for determining current and historical therapy cap amounts. These include: 

NGSConnex, which will indicate the amount on the Beneficiary Eligibility Information Panel.



NGS’s Interactive Voice Response (IVR) system, which provides the current and prior year therapy limit amount used.

April 2018 Dark Days for the Common Working File In anticipation of the April 2018 Release, the Common Working File (CWF) Hosts will not process claims beginning Friday, March 30, 2018 through Sunday, April 1, 2018. During this period, which is commonly referred to as “dark days,” the CWF Hosts will install the April 2018 Release, complete weekly/monthly/ quarterly processing activities, and perform scheduled data center maintenance.

These dark days will limit access to information provided by the IVR system and to NGS’s portal, NGSConnex.

Providers may experience limited or no access to claims, eligibility, claim overlap, patient status, check inquiry, reopening/redetermination status, offset information, and financial claim information.

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

Resources 

21

“The History, Evolution, and Future of Medicaid Accountable Care Organizations,” by the Center for Health Care Strategies http://nasuad.org/sites/nasuad/files/ACO-Policy-Paper_022718.pdf

Corporate Compliance Roundtable Discussion