September 18, 2017 Edition of the Situation Report

PROBE & EDUCATE

MEDICAID F2F

MLTC/MCO UPDATES

OT DECISION

Starting in October, Medicare contractors will begin a new targeted version of the probe-and-educate initiative for auditing medical eligibility.

A new Dear Administrator Letter recapitulates guidelines for required Medicaid face-to-face rule.

The state’s most recent MLTC/MCO stakeholder meeting includes updates on LHCSA Statistical Reports and state’s response to court rulings on 24-hour cases.

Federal court rules on “whitecollar” overtime exemption rule, but providers should be mindful that similar state-level provisions remain in effect.

PAGE 9

PAGE 13

PAGE 6

COMING UP Home Care Council (HCC) of HCA Member Forum September 19, 2017 10 a.m. to 12:30 p.m.

New York City Are You Prepared?

Emergency Preparedness Essentials in Home Care & Hospice Settings September 27, 2017 Albany Downstate LHCSA and HCC Member Forum October 11, 2017 New York City Corporate Compliance Symposium October 19, 2017 Albany All HCA programs and registrations are posted at http://hcanys.org/eventseducation/upcomingevents

PAGE 7

Your Source for HOME CARE News, Policy and Advocacy

Vol. 2, Issue 33 | September 18, 2017

Court Rules on Andreyeyeva & Moreno Cases Rejecting “13-Hour Rule” for Non-residential 24-hour, Live-in Cases As announced in a Member Alert last week, the Second Department, Appellate Division on September 13 issued decisions in Andreyeyeva v. New York Health Care, Inc. and Moreno v. Future Care Health Services, Inc. — two cases with similar facts involving 24-hour, live-in aides and which pose a major impact for home care providers and their patients.

See CASE p. 2

Send Comments by 9/25 Insisting That CMS Reject Misguided & Damaging HHGM Payment Changes If you attended our recent Senior and Financial Manager’s Retreat or have been following federal news in The Situation Report, you’ve learned that the proposed 2018 Medicare Home Health Prospective Payment System (HHPPS) rule includes a major reimbursement overhaul, called the Home Health Groupings Model (HHGM), which will cut nearly a billion dollars nationally from home care in 2019.

See HHGM p. 4 BREAKING: Minimum wage survey

This morning, HCA is participating in a webinar on the imminent minimum wage survey for home care. The webinar concludes after the editorial deadline for The Situation Report. Please be on the lookout for updates via e-mail alert later today. Thank you.

INSIDE Court Rules on Cases Rejecting “13-Hour Rule”..................................................1 Send Comments by 9/25 on HHGM Payment Changes........................................1 Member Hiring Announcement........................................................................3 CMS Issues Transmittal on Targeted Probe and Educate Program.......................6 Data Exchange Incentive Grant Deadline Extended to Sept. 30, 2018.................6 DOH Makes Official Statement on Medicaid F2F Requirements..........................7 OIG Uses Extrapolation Technique to Question $1.4 Billion in MLTC Payments.....8 Important News from DOH Monthly MCO/MLTC Meeting....................................9 DOH-Hosted Webinar to Present HCA Sepsis Tool to MCOs/MLTCs.....................11

HCA, DOH Meet to Coordinate on Emergency Preparedness (EP) Package........12 Federal Court Decision Issued on “White Collar” Exemption...........................13 Free Webinar: Performing Effective HIPAA Risk Assessments..........................14 PHHPC Establishment and Project Review Committee Agenda Posted.............15 NYS Health Foundation Announces Special Projects Funding..........................15 Two Hospice Updates: CAHPS Exemptions, Provider Preview Reports.............16 CMS Posts New Medicare Card......................................................................16 Upcoming NGS Education Programs...............................................................17 Resources...........................................................................................17

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

Volume 2, No. 33 September 18, 2017 

CASE from p. 1 The court held that, to the extent that the aides were not “residential” employees (who “lived” on the premises of their employer), the aides were entitled to be paid the minimum wage for all 24 hours of their shifts, regardless of whether they were afforded 8 hours for sleep (including 5 hours of uninterrupted sleep time) and three hours for meals (also known as the so-called “13-hour rule”).

In its two decisions, the Second Department ruled that the state Department of Labor (DOL) opinion letter setting forth the “13hour rule” is inconsistent with the plain language of a regulation which, according to the court, requires payment of at least the minimum wage for all 24-hours of a live-in shift for aides who are not “residential” employees — those aides who live on the premises of their employer and who are “required to be available for work.”

The Second Department’s decisions followed the precedent recently established by the First Department, Appellate Division, in Tokhtaman v. Human Care, LLC. The Second Department’s decisions, together with the decision in Tokhtaman, suggest that aides, depending upon the facts, will have to be paid for all 24 hours of a “live-in” shift.

HCA filed an amicus brief in the Andreyeyeva case and, related to all of these cases, has engaged with both the state Department of Health (DOH) and state Department of Labor (DOL) to stress the gravity of this issue.

On several occasions, we’ve stressed that, without state action, the home care system will collapse as patients cannot be kept at home on 24-hour cases, and home care providers would face staggering financial liabilities for good-faith efforts to abide by DOL’s and DOH’s past policy statements.

Such advocacy resulted in a DOH guidance on July 14, 2017 where DOH noted that it and DOL “have been monitoring these cases and will continue to evaluate whether action may be needed to prevent unnecessary disruption to home care services in New York State.”

These latest decisions compel further advocacy with both state agencies of jurisdiction to reach a solution.

Continued on next page 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

2

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 Vice 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

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

Volume 2, No. 33 September 18, 2017 

Continued from previous page As noted in a Politico News report on the development (see http://www.politico.com/states/new-york/ city-hall/story/2017/09/14/appellate-court-ruling-rattles-home-care-industry-raises-fears-of-collapse114494), HCA “has met with the Cuomo administration and stressed that without state action, its members will be decimated as home care providers could face millions of dollars worth of financial liabilities.”

“The court’s decision, which invalidates the so-called 13-hour rule that providers have relied on in good faith for these services, opens up major potential exposure for wage costs, and this exposure results from discrepancies in state regulations and guidelines,” said HCA Communications Director Roger Noyes in the report. A similar HCA statement was reported in today’s edition of Crain’s Health Pulse. (See http://hca-nys.org/wp-content/uploads/2017/09/Crains091817.pdf.) HCA has already reached out to DOH to emphasize the urgency of this issue and to develop ways to address it and will be working with the state DOL, provider associations and other stakeholders. Please also see p. 9 story on the MLTC and MCO meeting where DOH addressed the implications of the ruling.

Conference Call on Sept. 26 HCA reminds members that on September 26, from 1 to 2 p.m., HCA has scheduled a members-only statewide call to provide updates and next steps on the Tokhtaman court case, including any administrative or legal recourse.

Given the new developments, this call will also include the Andreyeyeva and Moreno cases, all of which have implications for the financial obligations of home care providers in paying aides for “24hour, live-in” cases. The call will be led by legal experts at Jackson Lewis, the firm for HCA’s legal counsel.

If you have not yet registered for the call, please do so by completing the online form at https:// www.surveymonkey.com/r/ Tokhtaman and HCA will send you the dial-in code in advance of September 26.

SEEKING ASSISTANT DIRECTOR OF HOME CARE New York, NY 10018 Responsible for managing the day-to-day Home Care operation for NY City-based not-for-profit organization. Provides direct supervision of the Service Manager and In-take Department. This includes ensuring that the quality and quantity of service provided is consistent with agency mission, policies, and goals, plus compliance with all relevant government regulations.

WHY WORK FOR US? JASA is a challenging and rewarding place in which to work.

Professional employment possibilities are available to those who have the requisite skills, experience, and commitment to our essential mission. In addition to a competitive salary, JASA offers a comprehensive benefits package to its full-time and regular parttime employees. This includes major medical, dental, and life insurance; 401k tax-deferred savings plan; flexible spending account; pre-tax transit; and a generous leave policy.

CHECK OUR WEBSITE FOR THE FULL JOB DESCRIPTION FOR THIS POSITION http://www.jasa.org/careers HOW TO APPLY Email résumé and cover letter to: jobs@jasa.org.

Indicate Assistant Director - Home Care - Manhattan in subject line.

Please stay tuned for further information, as available, on this breaking development.

3

SUBJECT TO REVIEW FOR PURPOSES OF ADAAA JASA is committed to Equal Opportunity Employment

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

Volume 2, No. 33 September 18, 2017 

HHGM from p. 1 As HCA stressed during the Retreat, it is imperative that the home care community advocate now in large numbers insisting that the U.S. Centers for Medicare and Medicaid Services (CMS) removes HHGM from its proposed rule.

Your Message 

This proposal will cut nearly a billion dollars ($950 million) from the home care system at a time when New York providers are already shouldering major financial losses from CMS’s previous changes to the reimbursement system. This includes a series of four annual, 3.5-percent rebasing cuts that have been arbitrarily imposed on the industry, leaving New York providers with an average -6.97% Medicare operating margin. In the last five years, providers have experienced nearly 18% in cuts to the Medicare home health benefit at a time when spending has been essentially flat.



Analysis of the HHGM indicates that it would result in significant variation in reimbursement rates by states and regions. HHGM would reward inefficiency but not high quality outcomes (by redistributing payments away from services such as physical, occupational and speech therapy).

HHGM would also create access issues for patients in rural and under-served areas.



Departing from the longestablished standard for other payment changes, HHGM overhauls a 17-year payment model in a non-budget-neutral

We’ve urged members to weigh in on CMS’s past payment rules. But this time, it is absolutely necessary that all home care agencies join HCA in submitting formal comments on the 2018 rule during the short public comment period, specifically calling on CMS to reject HHGM. HCA has prepared a position paper spelling out the core reasons why HHGM must be rejected from the 2018 HHPPS final rule (see http://hca-nys.org/wp-content/ uploads/2017/09/Reject-Drastic-NewHHGM-Payment-System-for-HomeCare.pdf). The proposal would go into effect in 2019, yet its inclusion in the 2018 HHPPS final rule amounts to a rammingthrough of a massive proposed overhaul.

This process would codify the proposal now, within a short window of time for comments, setting the stage for a lasting and damaging impact on the home care industry in 2019. (You can download CMS’s proposed rule at https://www.gpo.gov/ fdsys/pkg/FR-2017-07-28/pdf/201715825.pdf. HCA’s memo on the proposed rule is at http://hca-nys.org/wp-content/ uploads/2017/08/ CMS2018ProposedRuleMemoFinal.pdf.)

Below is some language to use in your comments to CMS followed by instructions for sending comments.

4

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

Volume 2, No. 33 September 18, 2017 

manner. This is extraordinarily foolish and will undoubtedly lead to agency closures and a reduction in services. 

CMS must withdraw the HHGM as part of its proposed 2018 home health payment rule. There’s precedent for CMS withdrawing major payment models or pursuing them on a voluntary basis. In fact, CMS, just recently (in August 2017), rescinded an episode-based model set to go into effect for the hospital sector, and it made a prior one voluntary. To use CMS’s own words: “We are concerned that engaging in large mandatory episode payment model efforts at this time may impede our ability to engage providers, such as hospitals, in future voluntary efforts.” If this is true for hospitals, why doesn’t the same logic apply for home care?

How to Comment Comments to CMS are due electronically by 5 p.m. on September 25.

Please present your comments on official letterhead from your organization and signed by your agency’s executive or Board.

Electronic comments can be sent as a PDF by going to the following website and finding CMS’s “CY 2018 HHPPS Proposed Rule”: https://www.regulations.gov/.

Postal letters to CMS should be addressed to the following: U.S. Centers for Medicare and Medicaid Services Department of Health and Human Services Attention: CMS-1672-P Post Office Box 8016 Baltimore, MD 21244-8016 Re: File Code CMS-1672-P, Medicare Program, Proposed Home Health Prospective Payment System Rate Update for Calendar Year (CY) 2018 Stay Tuned for More Advocacy, Information and Next Steps HCA was in Washington last week where we met with the offices of both U.S. Senators Charles Schumer and Kirsten Gillibrand, as well as several Congressional offices, all of whom were receptive to our position on HHGM. HCA has developed a vigorous advocacy strategy on HHGM and will be notifying the membership of next steps for your action in opposing CMS’s proposal. Please stay tuned for more information and instructions.

5

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

Volume 2, No. 33 September 18, 2017 

CMS Issues Detailed Transmittal on Targeted Probe and Educate Program Scheduled to Begin Next Month The U.S. Centers for Medicare and Medicaid Services (CMS) has issued a detailed Transmittal regarding its plans for medical review after the completion of the second round of the “Probe-and-Educate” initiative. See https://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/2017Downloads/ R1919OTN.pdf.

In Transmittal 1919, CMS instructs home health Medicare Administrative Contractors (MACs) to begin the new “Targeted Probe and Educate” initiative by October 1, 2017.

Rather than target all agencies, the new home health Targeted Probe and Educate (HHTPE) program will focus on specific agencies that have been identified, through data analysis, as being a potential risk to the Medicare trust fund or who vary significantly from their peers. This HHTPE effort is a probe review of 20 to 40 claims per round, for a total of up to three rounds of review. After each round, providers will be offered individualized education based on the results of their reviews.

In addition to education at the conclusion of each 20-to-40 claim review, MACs may also educate agencies throughout the review process when easily resolved errors are identified, so that providers can avoid additional similar errors later in the probe. Transmittal 1919 includes a flowchart describing the process.

Agencies with continued high error rates after three rounds may be referred to CMS for additional action, which could include: 100 percent prepay review; extrapolation; referral to a Recovery Audit Contractor (RAC); etc. Providers may be removed from the review process after any of the three rounds if they demonstrate low error rates or sufficient improvement in error rates, as determined by CMS. Unfortunately, CMS’s Transmittal does not state the threshold of denied claims from Round Two of the Probe and Educate that would place a provider in this new initiative. Nor does the Transmittal define “low error rates or sufficient improvement in error rates” that would allow a provider to be removed from the initiative.

HCA has already asked National Government Services (NGS), New York’s MAC, for additional details on this latest CMS-mandated initiative and we will update the membership once that information is provided.

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

Data Exchange Incentive Grant Deadline Now Extended to Sept. 30, 2018 The state Department of Health (DOH) informed HCA last week that it has received federal approval to extend the Data Exchange Incentive Program (DEIP) into the next federal fiscal year (FFY) 2018, meaning that the program deadline is now extended from September 30, 2017 to September 30, 2018.

DOH, with support from the U.S. Centers for Medicare and Medicaid Services (CMS), established DEIP to increase health information exchange (HIE) adoption across the state through incentive payments of up

6

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

Volume 2, No. 33 September 18, 2017 

to $10,000 per organization. (The program is open to Article 28 nursing homes, Article 36 home care agencies and programs, Article 40 hospice facilities, behavioral health providers and others.)

This program is designed to help defray the cost for an organization when connecting to it local qualified entity (QE) and, as a result, increase the quantity and quality of data in the Statewide Health Information Network for New York (SHIN-NY). Organizations participating in DEIP are incentivized to contribute a predefined set of data elements to their local QE, formerly known as Regional Health Information Organizations (RHIOs).

Limited funding is available and this program is operated on a first-come, first-served basis. Providers enrolled in DEIP must meet Milestone 2 (contribution of clinical data to the QE) by September 30, 2018 in order to receive the milestone 2 payment.

DEIP program documents are currently being updated to reflect this change, and all New York QEs have been notified of the update.

To learn more about the program, please see the materials from a February webinar held by DOH. The slides are available at http://www.nyehealth.org/nyec16/wp-content/uploads/2016/04/DEIPWebinar_February2017.pdf (however, please note the deadline date changes as reflected in this article).

Feel free to contact your QE or e-mail deip@nyehealth.org with any questions.

DOH Makes Official Statement on Medicaid F2F Requirements Already Reported to Membership The state Department of Health (DOH) has issued a Dear Administrator Letter (DAL) on the Medicaid face-to-face (F2F) rule requirements. The letter largely reiterates a prior Medicaid Update article, already reported to the membership, where DOH first announced the requirements. HCA brings the DAL to your attention and for your records, as it is a more official statement of the Department’s requirements. You can download the DAL at http://hca-nys.org/wp-content/uploads/2017/09/MedicaidFace-to-Face-DAL_090817-2.pdf.

HCA and the Medical Society of the State of New York (MSSNY) worked in partnership to draft guidelines for DOH to use as the basis for Medicaid F2F. Our purpose was to ensure a streamlined process for physicians and home care agencies, and the narrowest applicability of the requirements, to avoid the kinds of extensive, onerous, duplicative and confusing standards set by the U.S. Centers for Medicare and Medicaid Services (CMS) in the case of F2F for Medicare home health services.

As reiterated in the DAL, “medical eligibility under Medicaid is not contingent on a patient being homebound, requiring nursing or therapy services, or requiring that the services be provided in the home.

Under Medicaid, medically needed home care services can be provided in any setting where normal life activities take place, such as in the Medicaid beneficiary’s workplace.”

Continued on next page

7

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

Volume 2, No. 33 September 18, 2017 

Continued from previous page

These criteria are important because they distinguish Medicaid F2F from Medicare eligibility requirements that must be documented in Medicare F2F. DOH also reiterates that these “rules apply only to Medicaid fee-for-service-covered services by CHHAs; they do not apply to managed care cases,” as explicitly sought by HCA and MSSNY in our draft proposal.

Please read the full DAL to learn more, or see our August 7 edition of The Situation Report at http://hcanys.org/wp-content/uploads/2017/08/SitRep080717.pdf.

OIG Uses Extrapolation Technique to Question $1.4B in MLTC Payments; Findings Disputed by DOH A new report by the U.S. Office of the Medicaid Inspector General (OIG) asserts that the state “improperly claimed reimbursement” for a sample of MLTC plan payments. The full audit report is here: https:// oig.hhs.gov/oas/reports/region2/21501026.pdf.

OIG’s report concludes that had New York made provisions to recover such payments, the state “could have saved the Medicaid program $1.4 billion” – an assertion that the state disputes in its response to the OIG audit.

According to OIG’s report, the state “disagreed with the estimate of cost saving because, during [the] audit period, the state agency was not required to include [OIG’s] recommended provisions in its MLTC contracts.”

“The claim of potential fiscal impact stemming from provisions that were not required to be included in the contracts is gratuitous,” the state Department of Health responded, noting the work of the Office of the Medicaid Inspector General and other state surveillance efforts to ensure compliance. “Provisions that allow the department to recover payments when plans do not comply with contract requirements have since been added to the MLTC model contracts.”

The audit apparently utilized an extrapolation technique to arrive at its findings, based on OIG’s random review sample of 100 payments that New York made to MLTCs in State Fiscal Year 2014. OIG said this review found that 36 of the 100 payments were “improper,” citing a range of reasons mostly related to: eligibility assessments; the timeliness of assessments and documentation of them; documented adherence to the written care plan; and disenrollment of beneficiaries who no longer required community-based services.

Without seeing the claims in question, the exact nature of these compliance issues is not clear. OIG’s report concludes by recommending additional state procedures to monitor MLTC plan compliance, along with model contract changes. HCA will be reaching out to the Department for further information on its next steps in response to the report, including any planned changes to its surveillance or contract language for which HCA will seek to provide input.

8

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

Volume 2, No. 33 September 18, 2017 

Important News from DOH Monthly MCO/MLTC Meeting DOH conducted its monthly meeting for MCO/MLTC plans and plan-member associations. Important operational and policy developments were discussed.

The meeting slides are at http://hca-nys.org/wp-content/uploads/2017/09/09-14-17-MLTCpolicy_and_planningFINAL.pdf.

Some of the key areas of discussion are summarized below.

Questions Regarding LHCSA statistical reports and the Live-in Rule DOH was asked when information from the newly required LHCSA statistical reports would be available to plans. DOH could not offer a date at this time.

The MLTCs and member associations raised the priority concerns over this past week’s court ruling on the state Department of Labor’s payment policy for live-in home care aides, which the court ruled is in conflict with the Department’s own regulations. (See page 1 story.)

DOH stated that the issue has priority attention in the Administration, acknowledging the far-reaching implications of the ruling. DOH reaffirmed that, until advised otherwise, plans and providers should continue to abide by the Department of Labor guidelines on payment. DOH said it would consider reissuing its directive advising organizations to “stay the course” with existing guidance for plans and providers.

Value Based Payment (VBP) implementation status and activity DOH intends to finalize and provide several basic VBP contracting templates, expected in the next several weeks, to further guide plans and providers in VBP contracting.

HCA and other representatives asked whether these would be sufficient to adequately guide planprovider steps to VBP, and also avoid or at least minimize multi-plan/multi-provider contract confusion.

Plans underscored and sought DOH’s effort to avoid in VBP the same types of major problems for plans and providers that occurred in last year’s implementation of minimum wage contract amendments.

Prior to this monthly meeting, HCA had reached out to provide DOH with input on plan-provider concerns and needs, and ways that might critically assist VBP implementation, specifically for meeting the state’s potentially avoidable hospitalization targets. 

DOH announced that its January 1 deadline for the “100 percent” VBP contracting requirement for MLTC will apply to MLTC-contracted personal care, LHCSA services, CHHA and nursing home services, but not as a mandatory milestone for other MLTC services by this date.



DOH plans to make available additional funds (potentially $5 to 10 million this October, and potentially $50 million in the coming year) for MLTC-provider VBP incentive payments.

Continued on next page

9

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

Volume 2, No. 33 September 18, 2017 

Continued from previous page 

announce entities selected as Workforce Investment Organizations (WIOs). These organizations will be designated by the state to conduct/ coordinate the provider workforce training under the $245 million long term care training and education initiative. Serving as key planning partners, MLTCs will be the conduits for funding from the state to the WIOs that are responsible for the training.

DOH announced another round of VBP boot camps (see slide 11 of the DOH presentation), as well as the schedule of meetings for a newly formed “Future of Integrated Care” stakeholders workgroup (see slide 4).

Other MLTC Issues 



MLTC Enrollment. Enrollment in MLTCPACE (and related LTC models) grew to nearly 206,000 individuals as of August.



MLTC Transition of Additional LTC Programs. DOH discussed the status, timetables and advisory activity for transition of the TBI, Nursing Home Transition and Diversion, and Assisted Living Programs into managed care.

(See slides for dates and other details.)





10

New DOH Actuary for MLTC. Deloitte is the state’s new actuary for MLTC rate setting (replacing Mercer).

Deloitte will also have a resource role in VBP (tentatively starting in early 2018), replacing KPMG.

CDPAP/FI Authorization. DOH discussed implementation of the new authorization requirement for Fiscal Intermediates operating under the Consumer Directed Personal Assistance Program (CDPAP). DOH stated that all FIs must go through the authorization process, whether current or new. The new authorization process would likely also bring into discussion operating issues, questions and guidance for all parties involved in executing the program.

Workforce Incentive. On September 28 (subject to change), DOH intends to



CDPAP Wage Parity. Responses to the state’s CDPAP wage parity survey were due September 8. Compliance with the requirement takes effect October 13.

DOH stated that it will be seeking to create “seamless implementation of the various wage laws.” (HCA will see if this reflects a streamlining of planprovider handling of the growing layers and variations of wage payment mandates.)

OPWDD Also, Dr. JoAnn Lamphere, Deputy Commissioner of Person-Centered Supports for the state Office of Persons with Developmental Disabilities (OPWDD), presented the Office’s multi-year plan for transitioning services for individuals into managed care models.

The workplan currently would provide the option for Community Care Service Organizations to evolve into managed care plans. In response, plan representatives urged OPWDD to consider first utilizing established MLTC-PACE models as the managed care provider, noting especially the intensive and complex needs (and associated high costs) of individuals receiving OPWDD services.

For further information, contact Al Cardillo at acardillo@hcanys.org.

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

Volume 2, No. 33 September 18, 2017 

DOH-Hosted Webinar to Present HCA Sepsis Tool to MCOs/MLTCs The State Department of Health is hosting a webinar for all managed care organizations and managed long-term care plans in the state presenting HCA’s Sepsis Tool and intervention protocol to plans’ clinical and operational leaders.

The webinar was announced Wednesday by DOH Division of Long-Term Care Medical Director Dr. Khal Alshaer in a communication to MCO and MLTC Chief Medical Officers, Quality Directors and Government Relations representatives.

The webinar will be held on September 29, from 10 to 11:15 a.m. It coincides with developments in the state’s value based payment process, as well as with September’s designation as National Sepsis Awareness Month.

This session is for MCOs and MLTCs only; however, providers should take important note for further opportunities to align with plans’ quality metrics, particularly under Value Based Payments.

Dr. Alshaer will focus on the potential role of the HCA sepsis tool in the avoidable hospitalization goals of the VBP model. DOH is requiring 100 percent of the managed care contracts with home care and certain other service categories to be value based by January 1, and with the focus on potentially avoidable hospitalization (PAH) metrics.

The HCA sepsis tool provides a concrete clinical strategy. It explicitly screens for three of the six PAH measures, and it inherently screens the remaining three PAHs as well because of their connection to the overall criteria and conditions reviewed under the tool.

Members of the HCA sepsis workgroup will present during the webinar, including: HCA Executive Vice President Al Cardillo; IPRO Senior Director of Quality Sara Butterfield; IPRO Sepsis Project Director Eve Bankert; and Thomas Heyman, Executive Director of National Sepsis Alliance. The U.S. Centers for Disease Control and Prevention’s top sepsis advisor, Raymund Dantes, MD, will also join the call, emphasizing CDC’s declaration of sepsis as a medical emergency.

Home care agencies across New York State and nationally are adopting the HCA tool. Home care agencies, managed care plans or other providers can register to use the tool by writing to sepsistool@hcanys.org.

Sepsis is the top factor in hospital readmissions, costing over $24 billion nationwide and resulting in nearly a quarter of a million deaths each year.

For further information, contact Al Cardillo at acardillo@hcanys.org.

11

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

Volume 2, No. 33 September 18, 2017 

HCA, DOH Meet to Coordinate on Emergency Preparedness (EP) Package HCA, the state Department of Health (DOH) Offices of Health Emergency Preparedness and Health Systems Management, and EP partners at the New York State Association of Health Care Providers (HCP) met on Wednesday to further plan and coordinate emergency preparedness initiatives under the Federal-State EP program.

Among these priority initiatives are: 

Local engagement meetings jointly conducted by HCA and HCP for home care agencies, hospices, local emergency managers, and local public health preparedness officers with the goal of building and reinforcing EP relationships and procedures between these partners. These local meetings will be the third phase in a series of such meetings (ultimately planned for all regions of the state) that HCA, HCP and DOH began last year for home care, hospice and local EP partners. Our meetings have thus far covered 34 counties. This next phase of meetings will be for providers in the Central New York and Hudson Valley regions.



A resource toolkit for home care agencies and hospices, developed with the recommendations of a workgroup of providers along with DOH, HCA, and HCP representatives. The toolkit will serve as a resource for providers in assisting their patients and families with emergency preparedness (also one of the added requirements under the new Federal Conditions of Participation, or “COPs,” for home care).



EP exercise development for home care and hospice.



Promotion of interoperable EP communications, EP training and education, situational awareness, collaboration with regional and state EP coalitions, support in hazard-andvulnerability assessments, and other initiatives.

Wednesday’s agenda also included the newly announced DOH changes in the transportation assistance levels (TALs). These changes further differentiate the asset needs for priority-one patients.

These and other priority EP areas will be discussed at HCA’s September 27 EP Education Conference.

The conference will include details on all of the above initiatives, town hall sessions with DOH EP representatives, a tabletop EP exercise, and more.

To register for this conference please visit http://hca-nys.org/wp-content/uploads/2017/08/HCA-EPEssentials-Program-Registration.pdf.

As September is National Emergency Preparedness month and we are witness to the profound effects of the recent, catastrophic natural disasters, no time is more apt than now for agencies to fully ramp up their emergency preparedness. As we have seen time and again, “all-hazards” readiness and

12

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

Volume 2, No. 33 September 18, 2017 

execution is the great difference-maker in emergency outcomes, especially in the priority protection and safety of patients and staff.

VP Andrew Koski on the EP Team HCA Vice President Andrew Koski will be joining with Al Cardillo as a member of HCA’s EP point-team. Mr. Koski succeeds Alexandria Blais in this role. HCA welcomes Mr. Koski in this additional, critical role for HCA and as a partner to the broader health system’s emergency planning and response process.

For further information, please contact Al Cardillo at acardillo@hcanys.org or Andrew Koski at akoski@hcanys.org.

Federal Court Decision Issued on White Collar Exemption On August 31, the U.S. District Court for the Eastern District of Texas (State of Nevada v. U.S. Dept. of Labor) held that the U.S. Department of Labor’s (U.S. DOL’s) May 2016 Final Rule was invalid. This rule would have more than doubled the minimum salary necessary to satisfy the “executive, administrative or professional” (aka “white collar”) overtime exemptions under the Fair Labor Standards Act. This follows on the court’s November 2016 preliminary injunction halting implementation of the Final Rule.

The court held that, even though the U.S. DOL has the authority to impose a salary level, the salary level imposed by the Final Rule was invalid because it was too high and excluded too many individuals who otherwise would have satisfied the “duties” test. (To determine whether an employee is exempt or not, the rule included two thresholds or “tests”: the amount of the salary; and the employee’s job duties. For determining overtime eligibility, or exemption from overtime, both tests are factored into the decision.)

The statutory provision establishing the exemptions makes clear that the primary test of whether a position meets the exemption is its duties, not its salary, as the latter was designed merely “as a floor to screen out the obviously nonexempt employees, making an analysis of duties in such cases unnecessary,” the court explained.

In setting a new minimum salary level that would have more than doubled the current minimum requirement (from $23,660 to $47,476, a new minimum that the U.S. DOL itself estimated would render 4.2 million employees automatically eligible for overtime pay), the court held the Final Rule “fails to carry out Congress’s unambiguous intent” that the focus of the white collar exemptions is the duties performed in the position, not the pay.

New York State version of OT rule nevertheless in effect Despite this court decision, employers should note that New York State has its own version of these “white collar” exemptions with their own corresponding salary levels. These levels were updated in December 2016 and range from $727.50 to $825 per week ($37,830 to $42,900 annually) depending on the location where the employees in an “executive” or “administrative” capacity works. These figures are included in a chart at https://www.labor.ny.gov/formsdocs/wp/part142.pdf.

In its “white collar” exemption, the state does not set a salary level for employees who work in a “professional” capacity; thus, “professional” employees are exempt from state minimum wage and

13

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

Volume 2, No. 33 September 18, 2017 

overtime laws regardless of their salary, but employers are still required to pay those employees the applicable federal “white collar” exemption salary level ($23,660) to qualify for an exemption from federal minimum wage and overtime laws.

More information on the state definitions for “executive,” “administrative” and “professional” is at the following links: 

https://www.labor.ny.gov/legal/counsel/pdf/administrative-employee-overtime-exemptionfrequently-asked-questions.pdf



https://www.labor.ny.gov/legal/counsel/pdf/executive-employee-overtime-exemption-frequentlyasked-questions.pdf



https://www.labor.ny.gov/legal/counsel/pdf/professional-employee-overtime-exemption-frequentlyasked-questions.pdf

Free HCA Members-Only Webinar: Performing Effective HIPAA Risk Assessments, Do’s and Don’ts September 26, 2017, 10 to 11 a.m.

Presenter: Dan Didier, VP of Services, GreyCastle Security In today’s health care environment, it’s not a matter of if, but when, your organization will be a victim of cybercrime. At some point you will experience ransomware, breaches of patient information, insider abuse, fraud or theft.

Understanding risk is the only way to build an effective security or cybersecurity strategy while utilizing finite resources.

This webinar will cover the standards and compliance regulations from HIPAA privacy and security rules. Join GreyCastle Security as we demystify risk management 101 and provide attendees with practical tactics focused on risk mitigation.

Takeaways: 

Effective methods for complying with HIPAA, HITECH and health care security standards.



A simple, eight-step process for managing risk and methods for assessing risk tolerance.



Comparisons of proactive and reactive approaches to health care security.

Click here to Register: https://greycastlesecurity.webex.com/greycastlesecurity/onstage/ g.php?MTID=ee01711b0bd26563ecfc8f62e9afbce6a.

About the presenter: Dan Didier (MSIA, CCSP, TSS) is an entrepreneur, speaker and Vice President of Services for GreyCastle Security with nearly 20 years of security experience in a wide range of industries including critical infrastructure, finance, health care, manufacturing and other prominent industries.

14

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

Volume 2, No. 33 September 18, 2017 

PHHPC Establishment and Project Review Committee Agenda Posted The state Department of Health (DOH) has posted the agenda for the September 20 meeting of the Public Health and Health Planning Council (PHHPC) Establishment and Project Review Committee.

It is at https://www.health.ny.gov/facilities/public_health_and_health_planning_council/meetings/2017-0920/.

The agenda includes applications by: 

25 entities to establish new Licensed Home Care Services Agencies (LHCSAs), including one with an Assisted Living Program; and



Eight existing LHCSAs for a change of ownership.

The next meeting of the full PHHPC is October 11.

Both meetings can be viewed at https://www.health.ny.gov/events/webcasts/.

NYS Health Foundation Announces Special Projects Funding The New York State Health Foundation (NYSHealth) has announced the availability of its 2018 Special Projects Fund Request for Proposals (RFP).

Applicants must submit an online inquiry form to determine whether a proposed project fits the funding criteria. There are two funding cycles for the Special Projects Fund. Deadlines for the online inquiry form are October 3, 2017 and March 13, 2018. Selected organizations will be invited to submit full proposals, with deadlines of November 30, 2017 and May 16, 2018.

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

The following focus areas will be ineligible for funding through the Special Projects Fund: Building Healthy Communities, Empowering Health Care Consumers, or Veterans’ Health.

Approximately 5 to 15 organizations are funded annually through the $3 million Special Projects Fund. The number of grants varies each round, given that budget request amounts are different for each grant. Special Projects Fund grants are typically in the $250,000 range. Funding requests can range from $50,000 to a maximum of $400,000.

More information, including Frequently Asked Questions, is at http://nyshealthfoundation.org/grant-seekers/rfps/ 2018-special-projects-fund?utm_source=2018+SPF+RFP&utm_campaign=2018+SPF+RFP+&utm_medium=email.

15

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

Volume 2, No. 33 September 18, 2017 

CMS Posts Two Hospice Updates on CAHPS Exemption Form and Provider Preview Reports The U.S. Centers for Medicare and Medicaid Services (CMS) has recently issued two notices for hospices. The first is about the Calendar Year (CY) 2017 Hospice Participation Exemption Form and the second announces that Hospice Provider Preview Reports are now being made available.

The following is a summary of each notice. 

The Participation Exemption Form for the CY 2017 CAHPS Hospice Survey data collection and reporting requirements is available to complete and submit on the CAHPS Hospice Survey website (www.hospicecahpssurvey.org). Hospices that served fewer than 50 survey-eligible decedents/ caregivers in CY 2016 (January 1, 2016 through December 31, 2016, or from assignment of CCN) can apply for an exemption from participation in the CAHPS Hospice Survey for CY 2017. The exemption form will be available to complete and submit online until December 31, 2017.



Hospice Provider Preview Reports are now available. Hospice providers are encouraged to preview their quality measure results based on Quarter 1-2016 to Quarter 4-2016 data, prior to the November 2017 Hospice Compare refresh. Providers have 30 days to preview their quality measure results (August 29, 2017 through September 28, 2017). For more information, visit the Hospice Quality Public Reporting website (https://www.cms.gov/Medicare/Quality-Initiatives-Patient-AssessmentInstruments/Hospice-Quality-Reporting/Hospice-Quality-Public-Reporting.html) and Preview Report Access Instructions website at (https://www.cms.gov/Medicare/Quality-Initiatives-PatientAssessment-Instruments/Hospice-Quality-Reporting/Downloads/Hospice-Provider-Preview-ReportAccess-Instructions.pdf).

If you have questions concerning this information, please contact the QTSO Help Desk at help@qtso.com or 1-877-201-4721.

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

CMS Posts New Medicare Card The U.S. Centers for Medicare and Medicaid Services (CMS) has released a picture of the newly designed Medicare card.

It is at https://www.cms.gov/medicare/new-medicare-card/nmc-home.html.

The new Medicare card contains a unique, randomly-assigned number, which includes a combination of numbers and uppercase letters to replace the current Social Security-based number (SSN). This is intended to prevent fraud and identity theft.

CMS will begin mailing the new cards to people with Medicare benefits in April 2018 to meet the statutory deadline for replacing all existing Medicare cards by April 2019. People with Medicare will also be able to see

16

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

Volume 2, No. 33 September 18, 2017 

the design of the new Medicare card in the 2018 Medicare & You handbook. The handbooks are being mailed and will arrive throughout September.

Health care providers and people with Medicare will be able to use secure look-up tools for quick access to the new Medicare numbers when needed. There will also be a 21-month transition period where doctors, health care providers, and suppliers will be able to use either their current SSN-based Medicare Number or their new, unique Medicare number, to ease the transition.

For more information, please visit: www.cms.gov/newcard.

Upcoming NGS Education Programs National Government Services (NGS), New York’s Medicare Administrative Contractor (MAC), will be hosting the following upcoming webinars: 

Home Health Face-to-Face Encounter & the Plan of Care (Tuesday, September 19, from noon to 12:30 p.m.) Registration is at: https://register.gotowebinar.com/register/6708713462767049987



Provider Enrollment: Submitting Revalidations via PECOS (Thursday, September 21, from 1 to 2 p.m.) Registration is at: https://register.gotowebinar.com/register/5315812549820690947



Home Health Billing Basics (Tuesday, September 26, from 3 to 4:30 p.m.) Registration is at: https:/ /register.gotowebinar.com/register/6919066529945281025



Ordering & Certifying Medicare Home Health Services (Thursday, September 28, from 1 to 2 p.m.)

Registration is at: https://register.gotowebinar.com/register/9192350797898481665

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

Resources 

“Challenges Appear to Limit States’ Use of Medicaid Payment Suspensions,” by the federal Office of Inspector General https://oig.hhs.gov/oei/reports/oei-09-14-00020.pdf



“Improving Home Health Care Through Innovative Technology-Enabled Care Transitions,” by Alliance for Home Health Quality and Innovation; Elevating Home; and Medtronic https://elevatinghome.org/wp-content/uploads/2017/09/Care-Transitions-White-Paper.pdf



“Medicaid Managed Care: CMS Should Improve Oversight of Access and Quality in States’ LongTerm Services and Supports Programs,” by the U.S. Government Accountability Office http://www.gao.gov/products/GAO-17-632

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

17