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Judge allows case against FI cuts to proceed, but denies a “stop” on implementation pending verdict.

NY’s third-party liability (TPL) contractor has again issued provider notices to demand bill and submit case documentation for semiannual TPL audits.

Not long after CMS issued final Medicare hospice rates, its Medicaid division released minimum hospice rates for state Medicaid programs to implement. HCA will notify the membership once the state acts.

In response to RFI, HCA eyes areas where CMS could streamline home care, hospice rules on documentation, patient care notifications, aide evaluations, and more.





Your Source for HOME CARE News, Policy and Advocacy

UPCOMING PROGRAMS Senior Financial Managers Retreat Sept. 5 & 6 Mohonk Mountain House (New Paltz) Webinar: Critical Conversations in LBGTQ End-of-Life Care Sept. 10 11 a.m. to 12:30 p.m. Know The Drill: Successful Emergency Planning, Preparedness and Compliance Strategies for Home Care & Hospice Sept. 17 (Troy) Editor's note: HCA continues our schedule of biweekly summer newsletters. There will be no edition on September 2. We will resume our weekly schedule on September 9.

Vol. 4, Issue 30| August 26, 2019

FEMA, Red Cross & DOH Emergency Management Pro to Help Test Your Continuity Planning on Sept. 17 A FEMA veteran – who also managed various emergency and financial supports for servicemember families, post 9/11, at the American Red Cross – will bring her extensive and impressive expertise to advise you at HCA’s upcoming September 17 ‘Know The Drill’ conference on emergency preparedness. See DRILL p. 2

MLTC Rate, Financing Updates At a recent finance meeting for plans and association representatives, state Department of Health (DOH) officials discussed the partial cap rate revisions or updates that will be implemented, along with other rate and budget actions affecting plans and providers. See MLTC p. 3

INSIDE FEMA, Red Cross & DOH Pro to Help Test Your Continuity Planning on 9/17............1 MLTC Rate, Financing Updates.........................................................................1 Judge: FI Lawsuit Can Proceed, But No Preliminary Injunction...............................4 Wage Parity Forms Due 9/1..............................................................................4 CHRC Tech Issue May Require Resubmissions, Removals from Direct Care.........5 2018 LHCSA Statistical Report Expected This Week...........................................6 DOH Outlines Approach on Dual Integration with Stakeholders.........................6 OMIG Resumes Semiannual TPL Case Requests Using Traditional Appeals.........7 Minimum Medicaid Hospice Rates Set in CMS Memo........................................8

Last week, team members from HCA and the Hospice & Palliative Care Association of New York State held a Joint Committee on Workforce, bringing together leaders from associated provider members to explore workforce needs and solutions. Together we are working to develop a coordinated plan for workforce support in home care and hospice, building on HCA’s series of legislative introductions in the 2019 session and further informed by six summer regional strategy sessions that HCA has held with members – where workforce issues ranked highest among discussion items. Please look for more details, ideas and proposals soon.

HCA Submits Recommendations for Regulatory Relief...................................9 HCA Invited to Test New Cost Report...........................................................10 DOH Issues Notification Protocol for Cybersecurity Incidents.....................10 CMS Posts Hospice Compare Refresh.........................................................11 OIG Posts Updated Work Plan....................................................................11 DOH Holds Webinar on ‘Conflict of Interest’ Provision................................12 DOH Spells Out UAS-NY Community Health Assessment Requirements.......13 CMS Posts ABN and Revised Instructions for Review....................................13 Assisted Living Expansion Announced........................................................14 Health Resources.....................................................................................15

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

DRILL from p. 1 Now at Tetra Tech’s Emergency Management & Community Resilience Division, Sarah Roberts, MSEM, has also served in multiple emergency management roles at the state Department of Health: as an emergency operations center agency liaison and trainer; state mass-care coordinator; agency duty officer; and planning lead for several agency-level and state-level plans. Roberts has a wealth of knowledge on any number of emergency preparedness topics. On September 17, she’ll specifically focus on safeguards you must consider in your Continuity of Operations Planning (COOP) for home care and hospice. COOP helps assure that your operation is running as normally as possible during a disaster, so you can maintain your primary commitments to patients and staff. COOP is also generally one of the initial steps in the recovery process once an emergency situation becomes stable. Don’t miss this unique opportunity to gain invaluable expertise on September 17. This is a can’t-miss session. Registration is at

Reminder: September is #Preparedness and #Sepsis Awareness Month HCA will be writing about these observances – specifically, the home care and hospice roles – in this week’s Capitol Report newsletter (on Wednesday). Please also check your inbox and HCA’s social media accounts for content and resources that you can share throughout September. Home Care Association of New York State (HCA) 388 Broadway, 4th Floor, Albany, NY 12207 Tele: 518-426-8764; Fax: 518-426-8788; Website


Volume 4, No. 30 August 26, 2019 

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 Roger L. Noyes Director of Communications, Editor of The Situation Report Rebecca Fuller Gray Executive V ice President for Clinical and Program Affairs Patrick Conole Vice President, Finance & Management Andrew Koski Vice President, Program, Policy & Services Alyssa Lovelace Director for Policy and Advocacy Lauren Ford Director of Program Research, Development and Policy Laura Constable Senior Director, Membership & Operations Celisia Street Director of Education Mercedes Teague Finance Manager Jenny Kerbein Director of Governance & Graphic Design Billi Wilson Manager, Meetings & Events Teresa Brown Administrative Assistant

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MLTC from p. 1

Representatives from the state’s actuary, Deloitte, also presented updates on the MLTC base rate and data adjustments for State Fiscal Year (SFY) 2019-20, program changes due to budget actions such as the Licensed Home Care Services Agency (LHCSA) contracting change (see our August 12 edition of the Situation Report for an update on the imminent new contract ratios); efficiency, trend, acuity and riskfactor adjustments; a review of non-benefit expenses (i.e., administrative and care management and risk margin, spend-down and taxes); and other issues. HCA members can download the detailed version of Deloitte’s presentation at: Daniel Carmody, DOH’s Director of the Bureau of Managed Long Term Care Rate Setting, also shared the timeline for rate revisions. 

Risk scores developed utilizing the new model will be applied at 100 percent from July 2019 through March 2020, utilizing assessments through December 2018, an enrollment snapshot from March 2019, and the Nursing Home Transition survey from September 2018.

Fiscal Intermediary Per-Member-Per-Month (PMPM) plan rates are scheduled for September 2019, retrospective to July 2019, in accordance with the rate tiers previously reported to the HCA membership and announced by the Department on July 1. (See a related story on the next page regarding the status of a lawsuit targeting these rates.)

Nursing home case-mix adjustments will be retrospective to July 2019, with implementation scheduled for fall 2019.

Implementation of the Consumer First Choice Option (CFCO) is scheduled for January 2020. CFCO, as extensively reported, is a federally-funded long-term care benefit through the state Medicaid plan to provide eligible New Yorkers with assistance with Activities of Daily Living (ADLs) and Instrumental Activities of Daily Living (IADLs) and other supports. Eligibility information, rate codes and more are here: community_first_choice_option.htm.

According to DOH, a timetable has yet to be determined for the final SFY 2019-20 rate revisions, and HCA will report back when more information is available. HCA’s MLTC plan members that have specific questions about any of these rate adjustments are encouraged to e-mail DOH at


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Judge: FI Lawsuit Can Proceed, But No Preliminary Injunction on Rate Cuts in Meantime State Supreme Court Judge Christina Ryba on Friday decided that a lawsuit targeting New York’s rate cuts to fiscal intermediaries (FIs) for administrative services can go forward. Judge Ryba found that the plaintiffs have a “cognizable cause of action” and “standing,” thus denying the state’s motion to dismiss the case. Nevertheless, the judge stopped short of granting plaintiffs a preliminary injunction (or stop) of the new per-member-per-month (PMPM) rates for FIs, stating that the petitioners “failed to establish irreparable injury.” Therefore, the rates can go forward as scheduled, beginning September 1, while the court presently considers this legal matter, pending further outcomes. If the PMPM methodology is deemed unlawful, as plaintiffs argue it is, then the state Department of Health (DOH), according to the judge, “may be directed to reimburse” FIs at the “current rate” of reimbursement. Plaintiffs are pursuing what’s called an Article 78 proceeding. These proceedings are used to appeal the decision of a New York State or local agency to the New York courts. According to Judge Ryba’s decision, a next scheduled hearing date to consider arguments is September 13. As previously reported, DOH announced the new PMPM rate tiers on July 1, with very little advance notice to stakeholders. HCA has argued for a further delay or “grace period” in the rates – scheduled to go into effect on September 1 – to accommodate the turnaround time required for contract amendments, and to gain further information about the state’s methodology and assumptions underpinning it. HCA also opposes expansion of current FI administrative duties which would further require changes in the rates to appropriately cover these costs, we write in a recent letter to State Medicaid Director Donna Frescatore (

Wage Parity Forms Due 9/1 Get Compliance & Internal Review Tips at Finance Conference Next Week The next round of state-required wage parity certification forms is due September 1, 2019 for Licensed Home Care Services Agencies (LHCSAs) and Fiscal Intermediaries (FIs) that contract with Managed Care Organizations (MCOs), Certified Home Health Agencies (CHHAs), and/or Long Term Home Care Programs (LTHHCPs) that serve New York City, Long Island and Westchester. The Wage Parity Law and related certification requirement do not apply to areas outside of New York City, Long Island and Westchester. MCOs, CHHAs and/or LTHHCPs that contract with LHCSAs and FIs are required to obtain a written certification on a quarterly basis from the LHCSA/FI or other entity which attests to the LHCSA/FI’s compliance. The form due September 1, 2019 covers the period September 1, 2019 through November 30, 2019 and is sent to the MCO, CHHA and/or LTHHCP, not the state Department of Health (DOH). Continued on next page


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Continued from previous page The 2019 certification forms and required wage parity levels are here: In completing the form, HCA recommends adding a date after the signature and noting on the form that the certification covers the September 1, 2019 through November 30, 2019 period, and retaining copies of all certifications for your own records. Questions about wage parity can be sent to DOH at Wage Parity Compliance Tips Next Week As a reminder, HCA’s upcoming Senior Financial Managers Retreat includes two leading legal and employee benefits experts to help you navigate compliance issues in the current litigation, audit and regulatory environment, where constant review and update are critical. Check out the session with Paul Essner, Principal at TSG Financial, and Emina Poricanin, Partner, Home Care Practice Leader, at Hodgson Russ in our brochure at HCA-Senior-and-Financial-Managers-Retreat-2019-Brochure-Final.pdf.

Criminal History Record Check Technical Issue May Require Resubmissions, Removals from Direct Care Last week, the state Department of Health (DOH) alerted providers that the Criminal History Record Check (CHRC) program recently experienced technical problems and a data loss, which means that providers may need to resubmit applicants and/or remove applicants from direct-care, depending on when the original CHRC submission was made. More information is here: All providers who conduct CHRCs are advised to take the following steps to ensure that their recent CHRC submissions are properly documented in DOH database files. 

Any applicant submitted for background check between August 20 at 6 p.m. and August 21 at 5 p.m. must be resubmitted. (If facilities are unsure about a given employee, they can check the “Submission in last 30 days” report.)

Any applicant whose termination was reported to CHRC during the same time period must be reterminated. (The “Terminations in last 30 days” report can assist with this resubmission.)

If agencies receive a negative determination during the time period referenced above, they should immediately remove the applicant from direct care, resubmit the applicant, and then rely upon the next legal determination letter.

Likewise, if a provider received an approval during the involved time period, the provider should ignore that approval, place the applicant back under supervision, resubmit the applicant and then rely upon the next legal determination.

For all “Charge Notification After Hire” letters, agencies should conduct a risk assessment to determine the necessary course of action.


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2018 LHCSA Statistical Report Expected This Week HCA, other associations, and some member LHCSAs met last week with the Department of Health (DOH) on the 2018 LHCSA Statistical Report. DOH intends to post the report sometime this week with a return date of November 16 for both the report and the LHCSA registration process. As of press time for today’s edition of The Situation Report, the statistical report has not been issued. As a reminder, both parts (the statistical report and registration) must be submitted by the deadline for agencies to meet the annual registration requirement. Monthly fines will be assessed after this date. LHCSAs who do not register by January 1, 2020 will not be allowed to operate, provide services or receive reimbursement from any source. In an alert to members last week, we outlined some of the important changes that providers can expect in the new report and registration process. Please see our alert for further details at

DOH Outlines Approach on Dual Integration with Stakeholders The state Department of Health (DOH) recently convened a meeting on Integrated Care for New York’s Dual Eligible Members, attended by HCA Policy staff. The session was hosted by state Medicaid Director Donna Frescatore and Lana Earle, Director of the Division of Long Term Care. They were joined by consultant Thomas Betlach, who is the former Director of Medicaid for the State of Arizona. During the session, the three officials reviewed the current landscape of New York’s dual-eligible members, the benefits of aligning the care of dual-eligible members, and the potential opportunities to align care. Only 3 percent of New York’s dual-eligible population is in an aligned model, according to the Department, whose presentation pointed to the opportunity area present in the fact that a significant portion of the population – 27 percent – is served by a Medicare Dual-Eligible Special Needs Plan (DSNP) along with a Medicaid contract that is not aligned (i.e., not under the same plan for both Medicaid and Medicare). This scenario includes 59,727 enrollees in a Medicaid Managed Care plan and 147,347 in Medicaid fee-forservice (FFS) who are also in a Medicare DSNP. DOH’s reasons for pursuing alignment range from stronger care-coordination between the two programs, to the simplification of outcomes assessment and improvements, to alignment of clinical and financial incentives between Medicaid and Medicare. New York’s Fully Integrated Duals Advantage (FIDA) program (being replaced by the new DOH plan) was one step in the state’s plan for duals integration. As of July there were 2,705 FIDA enrollees, compared to 3,315 in January, and the state has implemented a FIDA wind-down strategy eyeing December 31 as the effective end to the program. One approach that the state is working to actively operationalize is a process where the state would use CMS enrollment procedures for members, as they become dual-eligible, to align them with a Medicaid


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Advantage Plan (MAP) or Medicare Advantage (MA) Plan. Under this construct, members would have the ability to opt out and would still be able to select a plan of their choice (PACE, MAP, MA or MLTC) and would still have the choice to opt for FFS. The timeline generally hinges on the movement of members into MA/MAP at the time of Medicare enrollment, with the state actively identifying targeted default populations. DOH’s PowerPoint presentation offers some flowcharts on this anticipated process as well as additional data and policy considerations. It can be downloaded at Integrated-Care-for-Duals-_DOH_August-2019.pdf. The new integrated model(s) for duals has major implications for patients, providers and the system overall. HCA will be deeply engaged in advocating on design, operational and fiscal aspects of the program. HCA will also provide continuous updates and offer educational and conference sessions for the membership to hear more about these important developments.

OMIG Resumes Semiannual TPL Case Requests Using Traditional Appeals The state Office of the Medicaid Inspector General (OMIG) has resumed its semi-annual demand billing process for the first half of federal fiscal year (FFY) 2019. Details are outlined in a letter (mailed on August 19, 2019) that most Medicare-certified home care providers should have received from OMIG and its Third Party Liability (TPL) contractor, the University of Massachusetts Medical School (UMMS). The letter identifies which cases have been selected to undergo appeals (through demand billing), with dates of services that occurred in the first and second quarters of FFY 2019 only (October 1, 2018 through March 31, 2019) or the end of the episodic period billed to Medicaid. UMMS’s letter also says providers should continue monitoring the status of their demand bill claim(s) once submitted. Providers are required to correct any claims that are rejected or suspended by the Medicare Administrative Contractor (MAC), National Government Services (NGS). In addition, providers are required to timely submit a complete medical record to NGS once the Additional Development Request (ADR) is issued. A final remittance advice for each episode billed (by demand bill) will be issued within 60 days of the final bill submission to Medicare. Upon receipt of the final remittance advice, providers must send copies of the following documents to the TPL contractor, UMMS, within 10 business days: 

The original claim submitted to the MAC for each 60-day episode billed.

The final claim remittance advice sent to you from the MAC.

Each medical record your agency submitted to the MAC upon the ADR request.

HCA members interested in knowing whether they should have received a letter from OMIG can e-mail HCA at


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Minimum Medicaid Hospice Rates Set in CMS Memo to States on Heels of Final Medicare Payment Rule On the heels of its final Medicare hospice payment rule for fiscal year 2020, the U.S. Centers for Medicare and Medicaid Services (CMS) recently issued a new transmittal, along with a memo from its Medicaid unit, containing further information on the new rates for hospice services under both the Medicare and Medicaid programs. As HCA previously reported to members (in a memo and related newsletter article on the Medicare payment rule earlier this month), the base Medicare payment rates for hospice are increasing by 2.6 percent, with upward adjustments to Inpatient Respite Care (IRC) and General Inpatient Care (GIP) counterbalanced by a reduction to Routine Home Care (RHC). That reduction is made necessary, CMS says, for budget-neutrality reasons. Medicare CMS Transmittal No. 4363, dated August 16 at Transmittals/2019Downloads/R4363CP.pdf, provides further implementation information on the Medicare hospice rates already shared with the membership. This transmittal is mainly directed to Medicare Administrative Contractors (MACs) for functionally implementing these rate changes, effective October 1, 2019, the start of the hospice payment fiscal year. Medicaid In addition to its transmittal for MACs and other Medicare stakeholders, an August 13 memo from CMS’s Medicaid Financial Management group ( medicaid-hospice-rates-ffy-2020.pdf) outlines the Medicaid hospice rates to be implemented by State Medicaid programs. Under the statute, these Medicaid rates are calculated based on the annual rates established for the Medicare hospice program, which is why these Medicaid determinations traditionally follow the finalization of the Medicare rule. As such, the minimum Medicaid rates that states can implement vary only slightly from the Medicare rates. CMS’s memo essentially begins the process of instructing states on the minimum rates that must be implemented for the Medicaid program. Historically, New York State has implemented these rates, based on CMS’s instructions, at a later time, usually retrospective to the October 1 implementation date for the new hospice rate year. HCA awaits further information from the state’s Medicaid reimbursement officials on the Medicaid rate implementation and payment cycles based on the minimum levels outlined in CMS’s August 13 memo. We will immediately inform the membership when this happens. More information at HCA’s SFMR Next Week As a reminder, our upcoming Senior Financial Managers Retreat is featuring Katie Wehri from the National Association for Home Care and Hospice who has extensive expertise on hospice payment, regulatory and program issues. She’ll be available to answer questions from your hospice finance managers on the new


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rates and a range of issues affecting hospices. Please join us for this signature program (on September 5-6) in New Paltz by registering today at

HCA Submits Recommendations for Regulatory Relief Earlier this month, HCA sent recommendations for home health and hospice regulatory relief to the U.S. Centers for Medicare and Medicaid Services (CMS). The comments were in response to CMS’s Request for Information (RFI) on ideas for “regulatory, sub-regulatory, policy, practice and procedural changes that reduce unnecessary administrative burdens for clinicians, providers, patients and their families.” Our letter is at Our home health recommendations call on CMS to: 

Align Section 484.100(e) with requirements of the Health Insurance Portability and Accountability Act (HIPAA). Specifically, Section 484.100(e) requires that a patient’s clinical record be made available to a patient upon request at the earlier of: 1) the next home visit; or 2) within four business days. HIPAA provides 30 days for a health care entity to act upon a request for a copy of the medical record.

Retain the longstanding policy of allowing the use of “pseudo-patients” when aides are tested on their competencies.

Revise the regulation to require the aide be competency-evaluated in bathing through demonstration of a sponge, tub or (not “and”) shower and bathing and hair shampooing in sink, tub or (not “and”) bed.

Eliminate CMS’s burdensome standard that home health eligibility be fully supported solely on the basis of the records within the certifying physician’s record. Instead, CMS should require the Medicare Administrative Contractor (MAC) to consider the home health agency’s documentation (with or without the additional, discrete physician “sign-off”) – not solely the physician’s record – in making any determinations.

Limit the information that must be provided to a patient and caregiver so that it is no more extensive than: the visit frequency by each discipline (not visit schedules); medication schedule and instructions; and any other pertinent instructions related to patient care needs as determined by the agency. Also, CMS should eliminate the requirement for agencies to give, in writing, an explanation of the treatments to be administered and name and contact information of the clinical manager.

Allow either the registered nurse or the therapist to conduct the initial and comprehensive assessment when both disciplines are ordered at the initiation of care.

Our hospice recommendations include: 


Permitting hospices to utilize system-employed Nurse Practitioners (NPs), as long as the hospice doing so is wholly owned by the system/organization that directly employs the NP and as long as the

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hospice and system have established specific conditions, timeframes and circumstances for assigning NP services to the hospice. 

CMS should establish and enforce reasonable timeframes within which state survey agencies and MACs must respond to requests for approval of an address change or establishment of a new multiple location. This includes automatic approval for address changes, in certain limited circumstances, and a definitive process for expedited surveys that is minimally disruptive to the delivery of patient care.

CMS should create a waiver program under which hospices experiencing hardship in employing a MSW-level social worker may obtain an exception to the social work supervisory requirement. Our letter notes the precedent for such waiver allowances for other disciplines and under other regulatory structures or circumstances.

HCA Invited to Test New Cost Report The state Department of Health (DOH) has invited HCA, some HCA members and others for a stakeholder workshop to test a new cost report that is being developed for Licensed Home Care Services Agencies (LHCSAs), Certified Home Health Agencies (CHHAs) and Fiscal Intermediaries (FIs). DOH has selected a small group of providers to review and test the newly developed home care cost report and will hold two meetings to elicit feedback on it. When completed, a web-based tool will be used to collect cost report submissions, perform audit procedures, communicate with auditees, and develop both qualitative and quantitative reports from the information submitted into the tool. Our understanding is that this new cost report, once finalized, will be required for submission by all LHCSAs, CHHAs and FIs but not hospital-based CHHAs who currently submit cost report information through their hospital’s Medicaid cost report. HCA will provide additional information as it becomes available.

DOH Issues Notification Protocol for Cybersecurity Incidents As reported in an alert to members recently, the state Department of Health (DOH) is implementing a new notification protocol that providers should use to inform the Department when they have experienced a potential cybersecurity incident at their facility or agency. A cybersecurity incident is the attempted or successful unauthorized access, use, disclosure, modification, or destruction of data or interference with an information system operation. This protocol should be immediately implemented by all providers including HCA members (CHHA, LHCSA, Hospice). DOH’s announcement ( provides the contact information for each DOH Regional Office and was effective August 13, 2019. This document


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should also be posted as a sign throughout your facility or agency locations for immediate awareness and reference by your staff. DOH recognizes that providers must contact various other agencies in this type of event, such as local law enforcement. In collaboration with partner agencies, DOH provides assistance to providers during cybersecurity events, and DOH stresses that timely awareness of this type of event enhances its ability to help mitigate the impact and protect the health care system. Providers should ensure they make any other notifications regarding emergency events that are already required under statute or regulation. For example, a cybersecurity event should be reported to the New York Patient Occurrence Reporting and Tracking System (NYPORTS). Any questions can be submitted to

CMS Posts Hospice Compare Refresh The U.S. Centers for Medicare and Medicaid Services (CMS) recently made available the August 2019 Hospice Compare refresh. HCA members can view the updated Hospice Compare data at: CMS’s updated data is based on Hospice Item Set (HIS) quality measure results from data collected from the fourth quarter of 2017 through the third quarter of 2018 and Hospice Consumer Assessment of Healthcare Providers and Systems (CAHPS) Survey results reported from the fourth quarter of 2016 through the third quarter of 2018. CMS’s refresh also includes performance scores for the “Hospice Visits when Death is Imminent” three-day measure. CMS decided not to publish Measure 2, the seven-day measure, and will conduct further testing. Additional information can be found on the Hospice Quality Public Reporting website at:

OIG Posts Updated Work Plan The federal Office of Inspector General (OIG) has updated its Work Plan. The update is at Two topics of interest include:


Medicaid-covered assisted living services – OIG will determine whether assisted living providers are meeting quality-of-care requirements for Medicaid beneficiaries residing in assisted living facilities and whether the providers properly claimed Medicaid reimbursement for services in accordance with federal and state requirements.

Use of Telehealth to Provide Behavioral Health Services in Medicaid Managed Care – OIG will analyze how certain states and managed care organizations (MCOs) use telehealth to provide behavioral

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health care. It will also review selected states’ monitoring and oversight of MCOs’ behavioral health services provided via telehealth. Finally, it will identify states’ and MCOs’ practices on how to maximize the benefits and minimize the risks of providing behavioral health care via telehealth. More information on OIG’s Work Plan is at

DOH Holds Webinar on ‘Conflict of Interest’ Provision On August 9, the state Department of Health (DOH) held a webinar on Next Steps for Becoming Compliant with CMS Conflict of Interest (CIO) Requirements. The webinar materials are at As discussed in numerous communications, under the COI requirements, providers of home and community based services (HCBS) – or those who have an interest in or are employed by a provider of HCBS – must not provide case management or develop the person-centered service plan. An exception exists when the state demonstrates that the only willing and qualified entity to provide case management and/or develop person-centered service plans in a geographic area also provides HCBS. In these cases, states must devise COI protections, including separation of entity and provider functions within provider entities, which must be approved by CMS. CMS has verified with DOH that the following models are COI compliant: 

Provider offers service coordination only;

Provider offers waiver services only; or

Provider offers service coordination and waiver services but cannot provide service coordination and certain non-exempt waiver services to the same participant.

DOH indicates it is compiling a year of claims data by provider and county (for April 2018 to March 2019) to determine who is COI compliant today, and who is not, and to determine whether there are currently rural/ cultural exemptions from COI (i.e., an only-willing-provider scenario). DOH intends to use this fact-finding to help work with providers on assessing and addressing potential transition issues. DOH expects to have all the data compiled and sent to providers by the first week of September. DOH will request that providers share with DOH their initial thoughts, within 30 days, on any changes to their current service provision they may make to become COI compliant. The information will profile the landscape across the state and help identify cases that may need to transition or potential service gaps, opportunities and rural or cultural exemptions. The meeting also discussed certain professional staff qualifications that create challenges for agencies, and DOH seeks feedback on revising some of them. After obtaining such feedback, DOH will post any changes for a 30-day review period and, based on those comments, formulate and post final qualifications. Continued on next page


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Continued from previous page More information on the COI requirements is at

DOH Spells Out Health Assessment Requirements, Sanctions for UAS-NY The state Department of Health (DOH) has posted a Dear Administrator Letter (DAL) about the requirements for conducting the Community Health Assessment (CHA), a nursing assessment housed in the Uniform Assessment System for New York (UAS-NY). The DAL is at While geared towards Administrators and Assisted Living Program Operators, the information is helpful for all agencies. It states: 

RNs must complete the CHA in its entirety, including triggered supplements.

The CHA must be completed in-person/face-to-face.

The RN Assessor must enter the data into either the UAS-NY Online or Offline Application in realtime while conducting the assessment.

The CHA must be signed by the RN who conducted the assessment.

The CHA must be signed and finalized on the day it is conducted or within two days if collateral information is required to complete the assessment.

The RN Assessor signature must contain the complete legal name, license number, and official title of the assessor and be accurately recorded in the appropriate UAS-NY fields.

The DAL mentions a whole range of consequences or sanctions for noncompliance, ranging from account suspensions to an investigative referral and possible repayment consequences. Questions concerning the UAS-NY should be directed to the UAS-NY Support Desk at (518) 408-1021 or

CMS Posts ABN and Revised Instructions for Review The U.S. Centers for Medicare and Medicaid Services (CMS) has posted for review the Medicare Advance Beneficiary Notice of Non-coverage (ABN) and revised Instructions. They can be reviewed at PaperworkReductionActof1995/PRA-Listing-Items/CMS-R131.html?DLPage=1&DLEntries=10&DLSort=1&DLSortDir=descending. Continued on next page


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Continued from previous page According to CMS, there were no changes made to the ABN but the Instructions include new language about serving individuals dually eligible for Medicare and Medicaid, and some minor language and grammar edits. The revised Instructions state that “dually eligible beneficiaries must be instructed to check Option Box 1 on the ABN in order for a claim to be submitted for Medicare adjudication.” However, CMS proposes that the provider manually cross-out (and not delete) certain language accompanying the option box. HCA refers you to page 5 of the instructions here: There you will see the precise language that CMS is instructing providers to manually strike out. The language pertains to Medicare payments, responsibility regarding payments and appeals, but CMS gives the following rationale for instructing providers to strike this language: These edits are required because the provider cannot bill the dual eligible beneficiary when the ABN is furnished. Providers must refrain from billing the beneficiary pending adjudication by both Medicare and Medicaid in light of federal law affecting coverage and billing of dual eligible beneficiaries. If Medicare denies a claim where an ABN was needed in order to transfer financial liability to the beneficiary, the claim may be crossed over to Medicaid or submitted by the provider for adjudication based on State Medicaid coverage and payment policy. Medicaid will issue a Remittance Advice based on this determination.

ABNs are required to be given to Medicare fee-for-service beneficiaries when home health agencies (and other providers) believe that Medicare will not provide payment in certain cases. CMS estimates that about 4.6 million ABNs are given annually to patients for home health. The current form and instructions are at Under the federal Paperwork Reduction Act, the ABN is subject to public comment and re-approval every three years. The current ABN has an expiration date of March 2020. Any members who have comments or concerns about the proposed change in the Instructions should contact Andrew Koski at

Assisted Living Expansion Announced The state Department of Health (DOH) has posted a Request for Applications (RFA) to award up to 1,000 Assisted Living Program (ALP) beds by eligible entities across New York State who are new to the delivery of adult home or enriched housing program services and to currently licensed adult homes or enriched housing programs new to the delivery of ALP services. This initiative is targeted to those counties where there is currently no more than one ALP provider and/or where the county’s current ALP capacity exceeds 85 percent. Continued on next page


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

Volume 4, No. 30 August 26, 2019 

Continued from previous page In addition, DOH announced grant availability to support capital projects directly related to the establishment of an Adult Home or Enriched Housing Program with an ALP or to increase the number of available ALP beds located in an existing facility within specific counties. More information is at Letters of interest and questions are due September 13; questions, answers and updates will be posted on or about October 8; and applications are due November 14.

Health Resources


“Selected Characteristics of 10 States With the Greatest Change in Long-Term Services and Supports System Balancing, 2012-2016,” by IBM Watson Health

“The Administration for Community Living Failed To Conduct Any of the Required Onsite Compliance Reviews of Independent Living Programs,” by the federal Office of Inspector General

“New York State Paid Family Leave, 2018 Year in Review” PFL_EOYReport_2018_FINAL.pdf

“Reforming Payment for Children’s Long-Term Health: Lessons from New York’s Children’s ValueBased Payment Effort,” by the United Hospital Fund

Profile for Home Care Association of New York State

August 26, 2019 Edition of The Situation Report  

The Situation Report is HCA's weekly publication of home care policy, legislative and regulatory news.

August 26, 2019 Edition of The Situation Report  

The Situation Report is HCA's weekly publication of home care policy, legislative and regulatory news.

Profile for hcanys