April 1, 2019 Edition of The Situation Report

CHHA DATA

LHCSA CON

MEDICAID REVALIDATION

LAWTALK

HCA’s members-only data page has a spreadsheet of key statistics from the 2017 cost reports filed by all CHHAs in NYS.

In testimony, HCA stresses flexibility in LHCSA need methodology, relaxed limits on current LHCSAs’ expansion applications, and a workgroup process to vet any new framework.

Providers must revalidate every 5 years; those who don’t will be terminated from the Medicaid program, including participation in managed care networks and fee-for-service.

The latest LawTalk examines a new OIG opinion allowing a hospital to provide free inhome care, raising an issue on Article 36 boundaries that commands attention in NYS.

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UPCOMING PROGRAMS Upstate and Downstate CHHA Member Forums Upstate: April 3, 2019 (Albany) Downstate: April 10, 2019 (NYC) WEBINAR: Clinical Documentation Improvement (CDI) April 11, 2019 WEBINAR: Lessons Learned from ValueBased Purchasing April 18, 2019 SupervisionPlus Online Managerial Training Self-paced online training module Registration deadline: May 8, 2019 HCA Annual Conference: Force For the Future May 8-10, 2019 Saratoga Springs

Your Source for HOME CARE News, Policy and Advocacy

Vol. 4, Issue 13| April 1, 2019

Final State Budget Agreement Reached As reported in an HCA alert on Saturday, the state budget reached its climax over the weekend. The $175.5 billion spending plan was substantially completed by today’s April 1 deadline.

The Legislature stood firm in rejecting many of the health and Medicaid cuts originally proposed in the Governor’s executive budget and 30-day amendments (such as the 0.8percent across-the-board cut and others), as well as new proposed mandates opposed by HCA (like the National Provider Identifier requirement for home care aides).

See BUDGET p. 2

Court of Appeals Upholds 13-Hour Live-in Standard; Yet Class-Action Risks Remain HCA announces April 5 call to brief members about implications of landmark verdict In a landmark decision long anticipated by the home care industry, New York’s Court of Appeals last week issued an opinion in the Andryeyeva and Moreno cases.

By a 5-to-2 margin, the court reversed an appellate division’s verdict, which had earlier rejected the 13-hour interpretation of state Department of Labor (DOL) law for compensable hours in 24-hour/live-in cases. You can read the decision at https://www.nycourts.gov/ctapps/ Decisions/2019/Mar19/DecisionList032619.pdf.

See COURT p. 5

INSIDE Final State Budget Agreement Reached.......................................................1 Court of Appeals Upholds 13-Hour Standard................................................1 HCA Data Webpage Now Includes 2017 CHHA Cost Report Data..................6 ICYMI: HCA’s March Edition of The Capitol Report..........................................7 Legislature Advances HCA’s Priority Home Care, Hospice Legislation...........8 HCA Testifies on LHCSA Public Need.............................................................9 Reminder: MCO Wage Reconciliation Cost Reports Due Friday..................11 Member Hiring Announcement................................................................11

DOH Posts FAQs on Immediate Need for Services.......................................12 HHCAHPS Preview Reports with Star Ratings Available..............................12 Revalidation of Medicaid Providers is Required............................................13 PHHPC Committee Acts on Home Care Applications.......................................13 LawTalk: OIG Greenlights Hospital’s Free Home Health Program.....................14 HCA Submits Comments on Draft OMIG PDN Audit Protocols..........................15 New Rule Proposed on Regular Rate Requirements.......................................15 Compliance Review Program Initiated...........................................................16 DOH Posts RFI on ALP Public Need Methodology..........................................17 Health Resources........................................................................................18

The Situation Report: the Home Care Association of New York State BUDGET from p. 1 However, it appears the budget does afford the Executive with leverage to unilaterally make “across-the-board” reductions in the future. The circumstances for triggering these are unclear.

Also, in a newly identified item since Saturday’s preliminary alert to the membership, the budget includes $4 million in state-share funds to compensate providers for services provided to Independence Care System (ICS) Managed Long Term Care (MLTC) plan in the wake of ICS’s closure. Our understanding is that these funds may be in addition to the terms of an agreement that would pay providers at 75 percent of the funds owed to them in accounts-receivable over a threeyear period. We have also heard, and are still confirming, that the $4 million in new state-share annualized funds would amount to $24 million over a three-year period (inclusive of federal matching shares). HCA is further analyzing this item and seeking clarification on the exact appropriations and over what time period they would be paid.

Among the more nuanced and complicated outcomes is the status of proposed changes to the Consumer Directed Personal Assistance Program (CDPAP), especially the operation of fiscal intermediaries (FI), which we outline in further detail later in this article.

Assembly’s fiscal litmus test Throughout the budget process, the Assembly put a line between items it regarded as purely fiscal proposals as distinct from other proposals that are, ostensibly, non-fiscal “policy” matters. This had the effect of pushing off these latter “policy” issues for consideration post-budget.

By this litmus test, such “policy” items include, more generally, the Governor’s budget proposal for adult-use marijuana. It likely also includes some of the HCA-advanced proposals embraced by the Senate earlier in the process but absent from this final budget: mandate relief; MLTC and home care rate transparency protections; provisions to strengthen collaborative services between mental health and home health; and others.

In like form, the budget also appears to have omitted both the Governor’s asthma program and the home-based asthma initiative advanced by HCA, though Senate Health Committee Chairman Gustavo Rivera has separately introduced standalone legislation related to the asthma initiative. HCA will continue to watch for other items being 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. Al Cardillo President and CEO acardillo@hcanys.org Roger L. Noyes Director of Communications, Editor of The Situation Report rnoyes@hcanys.org Patrick Conole Vice President, Finance & Management pconole@hcanys.org Andrew Koski V ice President, Program, Policy & Services akoski@hcanys.org Alyssa Lovelace Director for Policy and Advocacy alovelace@hcanys.org Lauren Ford Director of Program Research, Development and Policy lford@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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handled outside the budget context. (See related p. 8 story on legislative developments.)

care organizations for late, incomplete or inaccurate encounter data, as well as OMIG authority to recover overpayments to plan contractors during the course of an audit.

Specific Items Below are some bulleted items based on an initial review of the Article VII budget bill, including provisions newly identified since Saturday’s alert to the membership.

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Accepts the Governor’s proposal to administratively amend existing regulations to allow MLTC plans to “more effectively manage utilization of personal care services,” generating an Executiveproposed $25 million in state-share savings. The precise details of this proposal are not yet known and HCA will query the administration for further information.

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Includes no additional rate language for Certified Home Health Agencies (CHHAs) other than the extension of the Episodic Payment System through 2023. The budget also extends CHHA bad-debt/ charity care allowances for two years (to 2021) and extends the CHHA administrative and general caps through 2021.

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As mentioned earlier, includes $4 million in funds to compensate providers for services provided to Independence Care System (ICS) MLTC in the wake of ICS’s closure.

HCA is further analyzing this item and seeking clarification on the exact appropriations and for which time period, including word of state-and-federal-share appropriations of $24 million over a multi-year period.

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Authorizes a transfer of up to $300 million from phase III of the Statewide Healthcare Facility Transformation Program pool so

For a complete analysis, we again remind members to join us for a statewide call on the budget, as previously announced, on April 5 from 12:30 to 2 p.m. (the call will also discuss the outcome of a recent Court of Appeals ruling on 24-hour/live-in cases). Registration is at https://www.surveymonkey.com/r/April5SWCall.

The final budget:

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Withdraws the 0.8-percent across-the-board Medicaid cut to all providers; though, as earlier noted, the budget expressly authorizes the state Division of Budget to unilaterally implement up to $190 million in each of the next two years for “across the board” Medicaid reductions.

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Extends prior cost-containment actions, including the Medicaid Global Cap, zero trend factors and other historic actions, as per usual budget bills in recent years; however, the bill provides a 2 percent COLA for human services agencies.

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Rejects the burdensome National Provider Identifier (NPI) mandate for home care aides.

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Rejects the MLTC transportation carve-out.

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Replaces the CDPAP FI authorization overhaul with a procurement process different from the Governor’s original plan, but somewhat similar in theme. (See further summary later in this article.)

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Includes at least some of the state Office of the Medicaid Inspector General (OMIG) program integrity proposals directed to MLTCs and provider networks. These include the Executive’s proposal to authorize penalties against managed

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Continued from previous page that these funds are available to those applicants under phase II that did not yet receive an award, with such awards to be made by May 1, 2019.

This transfer, along with a separate fund rededication of $5 million (for telehealth provision by perinatal centers and other providers), will reduce phase III awards by $305 million (from its original $525 million allocation) meaning that phase III awards will be a minimum of $220 million, with certain baseline amounts allocated to community-based health care providers, nursing homes and Assisted Living Programs. 

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Invests $10 million, in addition to federal funding, for implementing a federally required electronic visit verification system.

Includes a private-pay program for community services under the State Office for Aging (presumably provided by services contracted to a CHHA, Licensed Home Care Services Agency, or community-based organization).

Requires the state to conduct a safe staffing study of hospitals (in lieu of “ratios”).

Applies the state Wage Parity Law to aide services under the Nursing Home Transition and Diversion (NHTD) and Traumatic Brain Injury (TBI) waiver programs, effective immediately (April 1, 2019).

Provides for waivers for “replication and scaling” projects (presumably projects that are replicas of the Delivery System Reform Incentive Program initiative). This was in the Governor’s original language.

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Enacts a series of health insurance reform provisions and mandates intended to institute some of the federal Obamacare provisions in New York State law.

CDPAP changes in further detail The CDPAP FI proposal warrants some further explanation, given the complexity of the final proposal. The final FI procurement policy would be subjected to standards (e.g., geographic distribution, cultural competency, workforce availability) and guided by a workgroup establishing criteria. The workgroup is to convene

by May 15. The new process would provide all FIs in operation on or before April 1, 2019 the right to apply and be considered for approval under the new procedures, establishing a transition process for any FIs ceasing operation.

The state intends transitioning to a per-memberper-month (PMPM) reimbursement for FI/CDPAP, but not as originally proposed by the Governor; the PMPM change appears to be planned as an administrative action versus one directed by the budget bill itself.

Further details on April 5 HCA will provide further details as we identify them.

It is important to note that some items in the budget agreement may be done “administratively,” like the FI PMPM as described above, and, therefore, are not visible in these budget bills.

HCA will be vigilant in our search for every item we can find that relates to HCA member agencies, MLTCs and services as we continue our analysis of all budget bills.

Please stay tuned for further updates as they are identified and, if you haven’t done so already, register for our April 5 call to learn more at https://www.surveymonkey.com/r/April5SWCall.

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COURT from p. 1 “This ruling upholds the law as interpreted by the state Department of Labor, as applied by the state Department of Health, and as followed in good-faith by providers who have been directed to comply with the 13-hour rule,” said HCA President Al Cardillo in a press statement sent to a few select media outlets that reported on the case. “HCA continues to support a structure of regulations and reimbursement that ensures proper compensation and coverage of direct-care staff,” he added, emphasizing HCA’s legislative proposals in this direction.

As extensively reported to members, the 13-hour standard requires that an aide be paid for at least 13 hours of a 24-hour shift as long as the aide is afforded 8 hours of sleep (five of which are uninterrupted) and three hours of meal break time.

At question was whether this standard would apply to non-residential as well as residential aides, and whether employers would be liable for billions of dollars in back wages – as well as increased ongoing prospective new wage liabilities – if the court required pay on all 24 hours of a shift for aides seeking class certification.

However, the court found that “DOL’s interpretation of its Wage Order does not conflict with the promulgated language, nor has DOL adopted an irrational or unreasonable construction, and so the Appellate Division erred in rejecting that interpretation,” the majority opinion states of the 13-hour standard and its applicability to non-residential aides.

Much of the opinion appears to rely on legal constructions that are deferential to a regulatory agency’s interpretation of its own regulations, which was at the core of this case, specifically DOL’s interpretation (in a 2010 opinion letter) that the 13-hour rule applied to all “live-in” aides regardless of whether they were residential.

“We have no occasion to deviate from our well-settled law in the appeals before us. Thus, if DOL’s interpretation of the Wage Order meets our deferential standard, we may not reject it,” the opinion states.

While the opinion largely covers procedural matters regarding DOL interpretation of statute, it expresses “no opinion on the ultimate merits of the plaintiffs’ claims.” Nevertheless, it defers to regulatory and legislative authorities, “not this Court, to consider whether the sleep and meal time exemption is a viable methodology.”

Continued risk While the court upheld the 13-hour standard and declined to certify a class on the alleged faultiness of that standard, the Andryeyeva and Moreno cases are nevertheless now remitted back to the state Supreme Court level “for consideration of alternative grounds for class certification for alleged violations of New York’s Labor Law,” including areas “unaddressed by the courts below” in their judicial testing of the 13-hour rule itself.

In other words, providers could still be vulnerable to wage-and-hour claims and class actions within the regulatory framework of the 13-hour standard (i.e., for noncompliance with the standard or for failure to document hours), and other issues. Press reports signal strong indications that these claims will, indeed, be pursued by Plaintiffs.

Continued on next page

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Continued from previous page Many other questions still remain, including how the outcome will affect similar pending litigation and how DOL, the state Department of Health or Legislature will respond. Indeed, the court’s opinion deferred to legislative and regulatory bodies on determining the appropriateness of existing wage and hour policies, as well as “enforcement priorities and methods,” which may be reexamined in the wake of the cases.

Learn More During HCA Statewide Call on April 5 For further information, HCA invites members to join us for an April 5 conference call with our policy staff and legal team to discuss the case and its implications. (The call will also provide an update on the state budget outcome.)

To register for the call, please complete the online form at https://www.surveymonkey.com/r/ April5SWCall.

HCA has worked extensively to maintain consistency in DOL’s position on the “13-hour rule” for 24-hour/ live-in cases, including: advocating for DOL and DOH guidance and support; submitting comments on DOL’s emergency rule which codified the 13-hour standard; testifying in support of DOL’s emergency rule at a hearing in July of last year; submitting amicus briefs in these appeals; and holding member briefings and education programs. This decision provides relief from a blanket class certification directed at faulting the 13-hour standard itself, and it provides important clarity in the rules going forward, but it remains important for providers to examine their documentation, compliance practices and internal controls to minimize risk.

Hinman-Straub memo For further background on the case and potential ramifications, please read the memo prepared by HCA’s government-affairs team at Hinman-Straub and be sure to share it with your legal counsel. The memo is available at https://hca-nys.org/wp-content/uploads/2019/03/2019-3-27-State-Court-of-Appeals-Upholds13-Hour-Standard-in-Andryeyeva-v-New-York-Health-Care-Homecare-Association-of-NYS.pdf.

HCA Data Webpage Now Includes 2017 CHHA Cost Report Data This week, HCA posted to our HCA Data website an HCA-developed spreadsheet of the 2017 Medicaid Cost Reports for all non-hospital-based CHHAs operating in the state.

HCA Data is a members-only page that provides data reports to assist home care and hospice providers and managed care plans in their: benchmarking efforts; understanding of system-wide trends and utilization patterns; and access to reimbursement, premium rates and operating margins. The page is not visible on our site unless you are logged in with an HCA member website account.

Our log-in page is here: http://hca-nys.org/login. Upon login, using your member username and password, the HCA Data link will appear in the site menu at the top right. You can also enter your e-mail

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address to obtain your password. Or, simply e-mail HCA’s Communications Director Roger Noyes at rnoyes@hcanys.org if you do not yet have an HCA website account.

HCA will also be submitting a freedom of information request this month to the Department of Health (DOH) for the fourth quarter 2018 Medicaid Managed Care Operating Reports (MMCORs) for each MLTC and Program of All-Inclusive Care for the Elderly (PACE) plan in the state, which we expect to receive from the state Department of Health in June or July. HCA will then prepare a detailed spreadsheet summarizing key MMCOR data, including such items as: plan enrollments; per-member-per-month premium revenue and premium income or loss; key utilization and unit cost data; and other information. HCA Data currently has 2017 MMCOR data available to members.

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

ICYMI: HCA’s March Edition of The Capitol Report HCA issued our monthly Capitol Report e-newsletter on Wednesday, our fourth edition.

The e-newsletter is targeted to state elected officials, providing must-know information about bills and laws, trends, and exciting innovations in home care, hospice and Managed Long Term Care. HCA also sends the newsletter to our Situation Report subscription list for circulation to HCA’s members.

In his welcome message, HCA President Al Cardillo reiterates HCA’s budget advocacy position, as communicated by members in several recent grassroots advocacy campaigns and reported extensively in the Situation Report and other vehicles.

Beyond the budget, which has been an all-consuming focus of state legislative activity in recent weeks, the March edition of the Capitol Report also: 

Shares a new HCA publication on health disparities and home care;

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Highlights a study on communications issues in post-hospital discharge to home care, stressing the value of technology and infrastructure support to overcome these issues that impact patient care;

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Cites a Buffalo business news report on home care labor shortages, quoting HCA and Western New York members Catholic Health Home Care and the Visiting Nurse Association of Western New York;

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Describes a new vehicle incentive program deployed by HCA member Visiting Nurse Services in Westchester; and

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Shows how a new collaboration law is being utilized by HCA member St. Joseph’s hospital Certified Home Health Agency to better serve patients in its Complex Care Coordination model.

Read the full newsletter here: https://conta.cc/2YtxpXp.

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Legislature Advances HCA’s Priority Home Care, Hospice Legislation A number of HCA-developed bills are continuing to gain support in the Senate and Assembly. These initiatives include: an amendment to the Geriatric Demonstration Program to permit home care and mental health collaboratives; an amendment to the Hospital-Home Care-Physician Collaborative Program aimed at health disparities; a labor market study for home care and hospice; and legislation that addresses home care and hospice worker shortage areas and disciplines.

Addressing Barriers Between Home Care and Mental Health Providers Last week, the Senate amended HCA-developed legislation (S.3872) known as the Geriatric Demonstration Program. Specifically, this legislation would enable the Commissioners of the state Office of Mental Health (OMH) and Department of Health (DOH) to waive rules and regulations in order to address barriers to collaboration between mental health providers and providers of home care services under the Geriatric Service Demonstration Program.

Such barriers may be related to Medical Assistance reimbursement, service procedures, care coordination and direct-care worker training. These areas were identified through ongoing discussions between HCA and OMH to promote integrated care at the service delivery level.

The bill is sponsored by Senator David Carlucci, chair of the Senate Mental Health Committee, and Assembly Member Aileen Gunther, chair of the Assembly Mental Health Committee. HCA Policy staff have been in constant communication with both offices since the introduction of the bill earlier this month and will work to see the bill through both houses in the coming weeks.

Assembly Majority Leader Sponsors HCA’s Health Care Disparities Legislation Assembly Majority Leader Crystal Peoples-Stokes has sponsored A.6772, HCA’s legislation that would address health care disparities under the Hospital-Home Care-Physician Collaborative Program.

Specifically, the bill amends the Collaborative Program to authorize programs which address issues of access and/or treatment drivers of health disparities among certain populations, including: racial and ethnic minority groups; persons with disabilities; women; the poor; and persons living in rural and other medically unserved and underserved geographic areas.

The bill was introduced in prior years by Assembly Member Peoples-Stokes and by the past Chair of the Senate Health Committee, Senator Kemp Hannon.

Home Care and Hospice Legislation Gains Support from the Assembly Assembly Member Harry Bronson introduced two pieces of HCA-developed legislation (already in the Senate) that would establish a labor market study for home care and hospice, A.6902/S.1359 (Senator Susan Serino), as well as legislation that addresses home care and hospice worker shortage areas and disciplines: A.6768/S.1420 (Serino).

A.6902/S.1359 would authorize the state Commissioner of Labor to conduct a competitive labor market study assessing and making recommendations for home care and hospice capability to compete in the

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labor market for recruitment and retention of direct-care staff to meet patient and health system needs.

The bill would also establish a taskforce to promote entrance, practice, career development and retention in home health and hospice occupations, including home health aide, nursing, physical therapy, occupational therapy and social work, among other disciplines.

A.6768/S.1420 addresses major geographic and discipline shortages around the state that impact access to home care and hospice services. The bill would allow for rate adjustments for health personnel recruitment, training and retention, and includes an adjustment that specifically targets the geographic shortage areas and shortage disciplines. Furthermore, the legislation would create a pilot to test the effectiveness of the various approaches to addressing worker shortages areas and disciplines.

HCA Continues to Seek Support for Sepsis Legislation In late February, the Senate Health Committee advanced HCA’s Sepsis legislation: S.1817 (G. Rivera)/A.3839 (Assembly Member John McDonald). The bill was advanced to the Senate Finance Committee.

This legislation would specifically create a new article 36 section devoted to home care sepsis intervention that would authorize the state Department of Health to provide support for HCA’s statewide efforts in numerous ways.

Post-Budget Strategy Throughout state budget negotiations, HCA pressed for inclusion of the aforementioned bills in a final budget agreement. As reported elsewhere in today’s newsletter, budget negotiation pressures and focus priorities resulted in the Legislature holding off on ostensibly non-fiscal items until after the budget. HCA will continue to meet with bill sponsors and seek passage in both houses this session. In the coming weeks, it will be critical for all members to engage in grassroots advocacy initiatives to ensure these bills are ultimately passed and approved by the Governor.

Please contact Alyssa Lovelace, alovelace@hcanys.org, with questions or concerns about the status of HCA’s legislation.

HCA Testifies on LHCSA Public Need at PHHPC Committee Meeting Last week, HCA Director for Policy and Advocacy Alyssa Lovelace and HCA Vice President for Program Policy and Services Andrew Koski testified before the Committee on Health Planning of the Public Health and Health Planning Council (PHHPC) regarding a public need process for Licensed Home Care Services Agencies (LHCSAs).

Under a provision in last year’s final state budget, effective April 1, 2020, the PHHPC will be required to consider the public need for LHCSAs and the financial feasibility of the applicant in its review of applications.

In July 2019, the state Department of Health (DOH) sought feedback on the development of a LHCSA public need methodology via a Request for Information (RFI).

The RFI had sought recommendations for planning area designations; factors to include in the need methodology; exceptions to the methodology; experience for a LHCSA operator; any caps on the number of

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LHCSAs in a county; any special considerations for prioritizing initial licensure applications; whether any need methodology should apply to changes in ownership and/or expansions by existing LHCSAs into other areas; whether public need should consider if a LHCSA intends to serve Medicare and Medicaid patients; and additional requirements or priority considerations.

HCA and LeadingAge NY jointly submitted comments and recommendations that are at https://hcanys.org/wp-content/uploads/2019/03/LHCSA-Need-Methodology-RFI-Joint-Comments-110618.pdf.

In the cover communication sent with our joint comments, we “recommend that a workgroup be established to deliberate and advise DOH in greater depth and detail on the questions posed by the RFI and on implementation of the new process.”

“In addition, we ask that the use of this or any other detailed criteria in the application and review process not be applied in ways that add layers, administrative burdens, costs or time delays to providers or the Department. The LHCSA Certificate of Need process should, to the maximal extent, be as efficient, timely and seamless as possible for all concerned.”

Our comments tried to balance the components of a required public need methodology with the desire not to interfere with the entrance of new entities that can bring necessary services to patients in need.

Based on the RFI responses, DOH had prepared a summary document outlining the issues and possible state actions. This document was shared with the Associations and discussed at the PHHPC Health Planning Committee.

During our testimony at the Health Planning Committee, we first described the critical financial and operational issues facing the LHCSA sector that require immediate attention, including inadequate monies to support minimum wage and other labor mandates; workforce shortages; unfunded mandates; lack of funding for technology needs; and more.

Next, HCA addressed the DOH summary document and the Health Planning Committee discussion and made the following points:

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The Department should maintain a relaxed process for currently operating LHCSAs seeking to expand their service area or add services to their license as is allowed now. Such “construction” requests for existing LHCSAs should not be subject to public need or PHHPC approval.

Furthermore, DOH should not halt the review and approval of such construction applications until it completes a review of such procedures.

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HCA supports the exemption from public need of those LHCSAs seeking a transfer of ownership, and supports the review of a LHCSA’s financial feasibility as part of the public need process.

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HCA also suggests supporting flexibility for planning areas. The planning area could be based upon county; however, there may be need in smaller niche communities in metropolitan areas, as well as in rural parts of the state.

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HCA does support using statistical and cost report data in determining a need methodology; however, at this time, it is unclear as to how DOH will determine need based upon county

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normative use rates or changes in LHCSAs’ provisions of services. HCA suggests that DOH provide clear cut examples moving forward when discussing these criteria in determining need for counties/ other planning areas. 

In order for DOH to have as much support for this initiative as possible and provide further input on issues that DOH has identified as “options for discussion,” HCA encourages the state to host a Workgroup of providers, state associations and other stakeholders to finish determining the process.

This will address the questions not answered by DOH within their response document, and it will assist with determining other factors of consideration when determining a need methodology.

HCA has already had follow up discussions with DOH on next steps in the LHCSA need methodology process, including a possible Workgroup, and will keep members informed of any new developments.

Reminder: MCO Wage Reconciliation Cost Reports Due Friday Managed Care Organizations (MCOs) are reminded to complete their Minimum Wage Reconciliation Cost Reports, due this Friday, April 5 by close of business on the state’s Office of Pool Administration (OPA) website.

The purpose of the reports is to track the amount of funding paid out to providers for minimum wage increases. The state Department of Health (DOH) says it reviews the data to calculate the amount to be reconciled, comparing recognized MCO minimum wage expenses with the amount of minimum wage funding that MCOs received in rates to determine overfunding or underfunding.

In a notice about the reports last week, DOH’s Bureau of Managed Long Term Care Rate setting noted that the OPA site has been changed to allow plans to not only upload a set of providers from an Excel file but also to add the corresponding minimum wage expenses and hours of service for each provider for a specific quarterly report.

To utilize this option, plans can login to their account and, on the dashboard under the Minimum Wage Reconciliation Cost Report section, you will see an “Upload Providers & Data” button in the Action column next to reports that have been started.

HIRING President of Home Care & Hospice The Position: Head strategic Home Care and Hospice operations for the health system, including growing specialty programs.

Pave the way for clinical and technological innovation in both the home care and hospice programs including a heart failure readmission reduction program, implementation of a new EMR, growing the current telehealth program, expansion of community and facility based palliative care programs, and support for value based purchasing (VBP) initiatives. Must possess prior CHHA executive experience, financial/budgetary experience, and a familiarity with Population Health strategies and initiatives. RN and/or Nurse Practitioner with Master’s degree required.

The Organization: Catholic Health Services of Long Island includes six hospitals, three skilled nursing facilities, a regional home care service, a certified hospice and a community-based agency for persons with special needs. The 1,928-bed system prides itself on the values of Integrity and Compassion. CHS serves hundreds of thousands of Long Islanders each year, providing care that extends from the beginning of life to helping individuals live their final years in comfort, grace, and dignity. At Catholic Health Services, there are 358,805 annual home care visits and 125,636 annual hospice days-of-care.

To apply, please visit our website at: https://www.besmith.com/job-details/farmingdale-new-york-home-health-1256636/.

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DOH Posts FAQs on Immediate Need for Services The state Department of Health (DOH) has posted a series of frequently asked questions (FAQs) regarding immediate need and the requirement to expedite Medicaid eligibility determinations and need assessments for Personal Care Services (PCS) or Consumer Directed Personal Assistance Services (CDPAS).

The FAQs are at https://www.health.ny.gov/health_care/medicaid/publications/lcm/19lcm-2.pdf.

Legislation passed in 2015 requires expedited Medicaid eligibility determinations for applicants who have an immediate need for PC or CDPAS, and expedited procedures for determining PC or CDPAS eligibility for Medicaid recipients with an immediate need for these services.

For Medicaid applicants with immediate needs for PCS or CDPAS who are determined eligible for Medicaid and PCS or CDPAS, such services are required to be provided pending the individual’s enrollment in a managed care plan or managed long-term care plan (or provided if the applicant is excluded from enrollment in a managed long term care plan or managed care entity).

The FAQs address: how the local department of social services (LDSS) assesses whether an expedited immediate-need Medicaid eligibility determination request is complete; any impact on immediate need if an individual is privately paying for home care; any impact if an individual is receiving home care from Medicare or third party insurance; whether the physician must be Medicaid-enrolled if supplying the PCS or CDPAS order used to support a request for expedited Medicaid eligibility or assessments; and whether the LDSS can complete an assessment for someone living in a skilled nursing facility.

DOH had previously issued an Administrative Directive on this issue that is at http://www.health.ny.gov/ health_care/medicaid/publications/pub2016adm.htm.

HHCAHPS Preview Reports with Star Ratings Available Preview Reports are now available with the latest results from the Home Health Care Consumer Assessment of Healthcare Providers and Systems (HHCAHPS) survey.

These results cover the period from October 2017 through September 2018 (fourth quarter of 2017 to the third quarter of 2018) and are now available at https://homehealthcahps.org under the “For HHAs” tab.

These same data will be updated on Home Health Compare (HHC) on www.medicare.gov in April 2019.

The Preview Reports present the publicly reported results with star ratings for those agencies with a sufficient number of completed interviews (data for 40 or more patient surveys in the reporting period) to receive star ratings.

To access your agency’s HHCAHPS Preview Report, log into the HHCAHPS website using your username and password. Select the “Survey Preview Report” link under the “For HHAs” tab. If you have forgotten your password, click on the login link and then click the “Reset Password” button for further instructions.

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Continued from previous page For more information about the Preview Reports, refer to this document on the HHCAHPS website, accessible once you are logged in: https://homehealthcahps.org/LinkClick.aspx?fileticket=rEmqINcxYK8%3d&tabid=277.

For more information about HHCAHPS star ratings, including Frequently Asked Questions, go to https:// homehealthcahps.org/GeneralInformation/StarRatingsInformation.aspx.

If you have any questions about the HHCAHPS star ratings or your HHCAHPS Preview Report, please contact the HHCAHPS Survey Coordination Team via e-mail at hhcahps@rti.org or toll-free at (866) 354-0985.

Revalidation of Medicaid Providers is Required The state Department of Health (DOH) reminds Medicaid providers that they must revalidate every five years.

Revalidation includes providing information on the provider’s ownership, managing employees, agents, persons with a control interest, group affiliations, supervising/collaborating arrangements, as well as providing current addresses, specialties, etc. Providers will be notified by letter when they need to revalidate.

Home care and other enrolled providers who do not revalidate will receive a termination letter and will be terminated. Terminated providers will not be able to participate in Medicaid Managed Care (MMC) networks and the Children’s Health Insurance Program (CHIP), in addition to being unable to bill fee-for-service (FFS) Medicaid.

Information regarding the revalidation process can be found at: https://www.emedny.org/info/ProviderEnrollment/revalidation/index.aspx.

Providers are encouraged to maintain their correspondence address to ensure the letters are sent to the correct address. For questions about the revalidation process or how to maintain one’s provider file, visit www.eMedNY.org, contact the eMedNY Call Center at 1-800-343-9000, or providerenrollment@health.ny.gov.

PHHPC Committee Acts on Home Care Applications The Public Health and Health Planning Council (PHHPC) Establishment and Project Review Committee met on March 28 and sent to the full Council a package of home care and hospice applications.

The application information is at https://www.health.ny.gov/facilities/ public_health_and_health_planning_council/meetings/2019-03-28/.

The applications included:   

One entity to become the new sole member of an existing hospice.

One entity to become the new sole member of an existing Certified Home Health Agency (CHHA).

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Continued from previous page    

Merger of two existing Licensed Home Care Services Agencies (LHCSAs).

Change of ownership and merger of two existing LHCSAs. Two entities to become LHCSAs associated with an Assisted Living Program (ALP).

Two LHCSAs for changes in membership and to become associated with ALPs.

The Committee meeting was followed by a separate meeting of the Health Planning Committee at which HCA testified on the LHCSA public need methodology (see p. 9 separate story).

All committee and full PHHPC meetings are webcast at https://www.health.ny.gov/events/webcasts/.

LawTalk: OIG Greenlights Hospital’s Free Home Health Care Program

By Frank J. Fanshawe, Principal and Ashley Solowan, Associate, Jackson Lewis, P.C. On March 6, the U.S. Office of the Inspector General (OIG) issued an advisory opinion determining that a not-for-profit medical center would not be penalized for providing free in-home care to certain patients.

OIG’s opinion came in response to a guidance request by the unnamed medical center. The provider, in this case, sought to determine whether its actions constituted grounds for sanctions, including civil monetary penalties (CMPs), in view of federal statutes that prohibit kickbacks or a provider’s undue influence over a patient’s health care decisions.

Under its program, the medical center was providing free, in-home follow-up care to eligible individuals with congestive heart failure and chronic obstructive pulmonary disease who were deemed at risk for readmission. Eligible patients would receive two visits from a community paramedic each week for about thirty days following enrollment in the program. During the visit, the community paramedic would, among other things, review the patient’s medication, assess the patient’s need for a follow-up appointment, and perform a physical assessment of the patient.

While providing patients free in-home care could violate the CMPs statute (which prohibits programs from influencing a beneficiary’s selection of a particular provider, practitioner, or supplier), OIG stated its belief that the “benefits outweigh any risk of inappropriate patient steering that the law was designed to prevent.” OIG further notes that it would not impose sanctions under the Anti-Kickback Statute, stating that the program does not result in increased costs to taxpayers. Rather, OIG opined that the program may even lower the cost of health care, because, if successful, it would reduce readmissions and keep patients healthier.

Among other factors in its determination, OIG also noted that the medical center did not engage in any public advertising to promote the program, nor did it tie patient volume to employee compensation, nor remove the patients’ ability to select their preferred provider. Additionally, the scope and duration of the services provided were “reasonably tailored” to accomplish the medical center’s goal of increasing patient compliance with discharge plans, improving patient health, and reducing inpatient admissions and readmissions.

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Continued from previous page While OIG’s advisory opinion only pertains specifically to the unnamed nonprofit medical center, the opinion offers useful guidance for understanding OIG’s perspective on value-based arrangements and could facilitate hospital efforts to reach into the home following discharge.

HCA has been especially vigilant about this issue in New York State as it relates to state regulations, particularly jurisdictional breaches of Article 36 that are potentially triggered by state collaboration models, like the Delivery System Reform Incentive Payment (DSRIP) program, and separate actions by certain non-Article 36 entities to provide home care. These actions have led to non-Article 36 encroachment into home care-like services, often with providers avoiding the kinds of regulatory requirements that would otherwise fall on home care agencies that are licensed to admit and serve patients, applying their unique expertise and oversight to protect patient care.

LawTalk is a monthly series of articles from Jackson Lewis, the firm for HCA’s counsel. Please note that this article is for general, informational purposes, is not legal “advice,” and does 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.

HCA Submits Comments on Draft OMIG PDN Audit Protocols Last week, HCA submitted comments to the Office of the Medicaid Inspector General (OMIG) on its draft audit protocols for private duty nursing (PDN) services provided by Licensed Home Care Services Agencies (LHCSAs).

Our comments, based on feedback from members who provide PDN, suggested revisions to protocols that covered: timeframe for signed medical orders; services billed in excess of ordered hours; patient spenddown not applied prior to billing Medicaid; and timeframe for annual performance evaluation.

HCA will inform members once OMIG posts the final audit protocols for PDN. HCA thanks OMIG for sharing the draft protocols with us and members for providing input.

New Rule Proposed on Regular Rate Requirements Last week, the U.S. Department of Labor (DOL) announced a proposed rule to clarify and update the regulations that govern “regular rate of pay” requirements under the Fair Labor Standards Act (FLSA).

The proposed rule is at https://www.govinfo.gov/content/pkg/FR-2019-03-29/pdf/2019-05687.pdf.

The FLSA generally requires overtime pay of at least one and one-half times the regular rate for hours worked in excess of 40 hours per workweek. Regular rate requirements define what forms of payment employers include and exclude in the “time and one-half” calculation when determining workers’ overtime rates.

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Continued from previous page The proposed rule focuses primarily on clarifying whether certain kinds of perks, benefits, or other miscellaneous items must be included in the regular rate.

The Department proposes clarifications to confirm that employers may exclude the following from an employee’s regular rate of pay: 

The cost of providing wellness programs, onsite specialist treatment, gym access and fitness classes, and employee discounts on retail goods and services;



Payments for unused paid leave, including paid sick leave;



Reimbursed expenses, even if not incurred “solely” for the employer’s benefit;



Reimbursed travel expenses that do not exceed the maximum travel reimbursement under the Federal Travel Regulation System and that satisfy other regulatory requirements;



Discretionary bonuses, by providing additional examples and clarifying that the label given a bonus does not determine whether it is discretionary;



Benefit plans, including accident, unemployment, and legal services; and



Tuition programs, such as reimbursement programs or repayment of educational debt.

The proposed rule also includes additional clarification about other forms of compensation, including payment for meal periods, “call back” pay, “basic rate,” and others.

According to DOL, these proposed changes would promote compliance with the FLSA; provide appropriate and updated guidance in an area of evolving law and practice; and encourage employers to provide additional and innovative benefits to workers without fear of costly litigation.

More information about the proposed rule, including a fact sheet and Frequently Asked Questions, is available at https://www.dol.gov/whd/overtime/regularrate2019.htm.

Compliance Review Program Initiated A division of the U.S. Centers for Medicare and Medicaid Services (CMS) is launching a Compliance Review Program to ensure compliance among covered entities with HIPAA Administrative Simplification rules for electronic health care transactions.

In April 2019, the program will randomly select nine HIPAA-covered entities—a mix of health plans and clearinghouses—for compliance reviews. Any health plan or clearinghouse—not just those who work with Medicare or Medicaid—may be selected. In 2018, CMS piloted the program with health plan and clearinghouse volunteers to streamline the process. In 2019, providers will be able to participate in a separate pilot program on a voluntary basis.

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Continued from previous page Moving forward, the Compliance Review Program will conduct periodic reviews with randomly selected entities to assess compliance.

CMS will review participants’ administrative transactions for compliance with standards for transaction formats, code sets and unique identifiers.

Participants will attest to whether they comply with operating rules. Covered entities found to be noncompliant will be given the opportunity to take actions to correct issues and achieve compliance. Covered entities who do not achieve compliance may be subjected to escalated enforcement actions.

For more information about HIPAA Administrative Simplification requirements, visit https://www.cms.gov/Regulations-and-Guidance/Administrative-Simplification/HIPAA-ACA/index.html.

To prepare for the Compliance Review Program, the following resources are available: 

Compliance Review Program Information Bulletin: What to Expect Q&A (https://www.cms.gov/ Regulations-and-Guidance/Administrative-Simplification/Subregulatory-Guidance/Downloads/ CRProgramInformationBulletin.pdf)



Prep Steps (https://www.cms.gov/Regulations-and-Guidance/Administrative-Simplification/ Enforcements/Downloads/CRProgramPrepStepsBulletList.pdf)



Optimization Pilot Information Bulletin (https://www.cms.gov/Regulations-and-Guidance/ Administrative-Simplification/Subregulatory-Guidance/Downloads/Optimization-Pilot-InformationBulletin.pdf)

Questions or comments on the Compliance Review Program should be directed to AdministrativeSimplification@cms.hhs.gov.

DOH Posts RFI on ALP Public Need Methodology The state Department of Health (DOH) has posted on the Health Commerce System (HCS) a Request for Information (RFI) to gather input on the development of a public need methodology for the approval of Assisted Living Programs (ALPs) that would be effective April 1, 2023.

The new public need methodology will consider regional occupancy rates of both adult care facilities and ALPs and the extent to which the ALP will serve individuals receiving Medicaid benefits, but will also serve to ensure an adequate supply of ALP slots are available and accessible.

The RFI seeks recommendations for planning area designations, factors to include in the methodology, exceptions to the methodology, and any additional requirements or priority considerations to be included.

Comments and recommendations should be submitted to ALPinitiative@health.ny.gov by May 1, 2019.

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Health Resources 

“As Home Care Expands, Let’s Make It Safer For Everyone,” Health Affairs Blog (March 20, 2019) http://tinyurl.com/y5mwvh5y



“Standardizing Social Determinants Of Health Assessments,” Health Affairs Blog (March 18, 2019) http://tinyurl.com/y3plhxql



“Medicaid Fraud Control Units Fiscal Year 2018 Annual Report,” by the Office of Inspector General https://oig.hhs.gov/oei/reports/oei-09-19-00230.pdf



“Medicare and Medicaid: CMS Should Assess Documentation Necessary to Identify Improper Payments,” by the Government Accountability Office https://www.gao.gov/assets/700/697981.pdf



“Collaborating on HCBS Workforce Challenges in MLTSS Programs,” by the National Association of States United for Aging and Disabilities (NASUAD) and Sage Squirrel Consulting http://www.nasuad.org/sites/nasuad/files/ Collaborating%20to%20Address%20HCBS%20Workforce%20Challenges%20in%20MLTSS%20Programs%202019.pdf

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

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