September 4, 2018 Edition of The Situation Report

LHCSA STAT REPORT

BILLING CODES

LHCSA, HCC FORUM

LAWTALK

The 2017 LHCSA Statistical Report is ready for completing by November 16, including a new submission process and registration requirement.

HCA submits comments on draft DOH revisions to the uniform billing codes policy.

With so many changes affecting LHCSAs — from contract limits to the moratorium and more — don’t miss our Oct. 4 Downstate LHCSA and HCC Forum delving into issues directly affecting LHCSAs.

The next installment of our monthly LawTalk column by lawyers at Jackson Lewis explores overtime pay requirements for salaried employees.

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UPCOMING PROGRAMS Senior Financial Managers Retreat (Sept. 6 & 7) New Paltz Mastering the LHCSA Survey Process: Upstate & NYC Sessions Sept. 20: Utica Oct. 30: NYC Ready and in Command: Hot Topics and Best-Practices in Emergency Preparedness (Sept. 27) Troy All-Sector Sepsis Summit (Oct. 3) Albany Register at https:// hca-nys.org/eventseducation/upcomingevents

Your Source for HOME CARE News, Policy and Advocacy

Vol. 3, Issue 34 | September 4, 2018

HCA Submits Comments on HHPPS Rule HCA last week submitted extensive comments on the U.S. Centers for Medicare and Medicaid Services’ (CMS) proposed rule for the 2019 Home Health Prospective Payment System (HHPPS). HCA’s analysis of the new system suggests possible reimbursement improvement for New York agencies. Our comments recommend careful piloting to guide these potential positive results, and we also address various components of the rule, such as: 

Multiple concerns regarding CMS’s proposed Patient Driven Groupings Model (PDGM) payment methodology change for Calendar Year 2020. Some of those concerns include: it being an untested model and our request for CMS to phase it in over time; See RULE p. 2

HCA Frames Urgent, Priority Issues with Legislature, Executive HCA has initiated meetings and messaging recommendations with the Legislature and Executive to frame a priority slate of urgent and proactive provider and health plan issues.

These meetings are focusing on immediate and near-term issues in the field, as well as proactive messaging and table-setting for the 2019 calendar of state budget, legislative and policy development.

See FRAMES p. 3

INSIDE HCA Submits Comments on HHPPS Rule............................................................1 HCA Frames Urgent, Priority Issues with Legislature, Executive........................1 HCA Comments on SED AHHA Regulatory Proposal............................................4 2017 LHCSA Statistical Report and Resources Posted......................................4 DOH Releases Guidance on MLTC-LHCSA Limits................................................5 DOH Distributes FAQs on LHCSA Moratorium....................................................6 Guildnet Files Request to Close......................................................................7 HCA Begins Active Steps on Pediatric Iteration of HCA Sepsis Tool......................7 Member Hiring Announcement.......................................................................8 HCA Offers Key Input to DOH on CFCO-MLTC/PACE..............................................9 HCA Submits Recommendations on Universal Billing Codes..............................9 CMS Releases 2016 Home Health Medicare Utilization &Payment Data.........10 CMS Announces Key Dates for Hospice Public Reporting.................................10

DOH Releases 2019 Minimum Wage Survey for Hospices............................11 Join HCA for Downstate LHCSA and HCC Forum...........................................12 Upcoming DOH Preparedness Webinars, Exercise, Plus HCA Conference.....12 Sexual Harassment Training and Guidance Released.................................13 LawTalk: Intricate Requirements Govern OT for Salaried Employees...........14 RWJF Grant Opportunity...........................................................................15 Upcoming Deadlines................................................................................16 Update Provided on Changes in SPAs, 1915 Waiver Reviews........................17 CMS Releases Guidance on Medicaid 1115 Waiver Demos.........................17 NYSE-CON Changes Made..........................................................................18 DOH Posts Regulatory Agenda...................................................................18 Providers Reminded About Medicaid Revalidation....................................18 HEPC Meetings Scheduled for Fall..............................................................19 Health Resources....................................................................................20

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

Volume 3, No. 34 September 4, 2018 

RULE from p. 1 underlying problems with the negative behavioral adjustment that CMS assumes; the need for adequate time so that providers can implement such a massive payment change; and the fact that over 50 percent of home health patients would fall into the Medication Management, Teaching and Assessment (MMTA) clinical diagnosis. 

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The current face-to-face (F2F) requirement remains an undue burden for home health agencies and physicians alike, with little justification in terms of payment integrity or effective eligibility oversight, and needs to be revised.

Congress’s decision and CMS’s proposed phase-out of the home health rural add-on between CY 2019 and 2022. The add-on should be restored and CMS should monitor the impact of its tiered approach that treats different rural counties in a disparate manner.

Al Cardillo Acting President acardillo@hcanys.org Roger L. Noyes Director of Communications, Editor of The Situation Report rnoyes@hcanys.org

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Enduring concerns with CMS’s proposed wage index and the need for it to more accurately reflect local market conditions.

Patrick Conole Vice President, Finance & Management pconole@hcanys.org

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The need for CMS to provide further analysis of the number of agencies affected by the OASIS submission and pay-forreporting thresholds and penalties.

Andrew Koski Vice President, Program, Policy & Services akoski@hcanys.org

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Ongoing concerns with: CMS’s value-based purchasing demonstration project; the home infusion therapy proposal; and the lack of funding for Health Information Technology/Exchange.

Laura Constable Senior Director, Membership & Operations lconstable@hcanys.org

For each area of concern, HCA offers specific comments or recommendations. HCA’s comments are at https://hca-nys.org/wp-content/ uploads/2018/09/HCA_CY2019HHPPS_ProposedRuleComments_083018.pdf.

A final rule is anticipated by November 2018, with the 2019 HHPPS going into effect on January 1, 2019.

To learn more about the impact of the rule, members should be sure to attend HCA’s Senior and Financial Manager’s Retreat later this week, on September 6 and 7, at the Mohonk Mountain House Resort in New Paltz. Colin Roskey, Partner at Scully Roskey & Missmar, will devote much of his presentation to this topic, along with other federal policy updates.

For more information, please contact Patrick Conole at (518) 8100661 or pconole@hcanys.org.

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.

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 3, No. 34 September 4, 2018 

FRAMES from p. 1 In this past week’s first high-level sessions, HCA Acting President Al Cardillo and HCA counsel from Hinman Straub brought our advocacy to the leaderships of both houses of the Legislature and the executive team of the state Department of Health Office of Health Insurance Programs, including the new State Medicaid Director.

Among the issues discussed were: 

The MLTC-Licensed Home Care Services Agencies (LHCSAs) contract limitations adopted in the budget, and the vast challenges in implementation, dislocation and impacts on MLTCs, agencies, workers and patients created by the budget action and the state guidance put forward to date (see related p. 5 story).

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Moratorium on the processing of LHCSA applications and emerging areas of restriction (see related p. 6 story).

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Concerns over state rate changes, reductions and cuts to MLTCs, and their implications for reimbursement adequacy for plans and provider networks, including care management and administrative cuts, coverage of minimum wage and other (new and existing) program mandates.

Moreover, these state rate actions are occurring while the state is simultaneously requiring transition to value based payment phase 2 contracting, incorporation of the Community First Choice Option, and execution of other budget changes like contract limits, the nursing home carve-out, and other elements.

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Announced health plan withdrawals from the marketplace and reported fragility, implications for transition support, as well as support needed by existing plans and providers, including protections against defaulted payments by closure or withdrawing plans.

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The current status and support needs of certified home health agencies (CHHAs), especially concerning workforce, regulatory/procedural relief, and funding needs. HCA emphasized the implications to the entire delivery system if CHHAs are not supported in executing their roles.

Workforce needs were also discussed across all providers.

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Support for home care in new and evolving roles and models in the health system. HCA emphasized home care’s ability to contribute to the state’s public health, primary and preventive care goals, in particular in collaboration with physicians, hospitals, plans and other partners.

HCA discussed and shared our legislative proposals on the above items, and will be following up with additional key officials in both the Legislature and Executive branches.

Look for more details and discussion on these items at several upcoming programs like our LHCSA Forum (see related p. 12 story) and, more immediately, this week’s Senior Financial Managers Retreat (on September 6 & 7) at the Mohonk Mountain House in New Paltz. HCA is building upon these and other state and federal issues as we aggressively and comprehensively pursue solutions, support and advancement of opportunities for home care and our collaborative role in the health system.

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

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

Volume 3, No. 34 September 4, 2018 

HCA Comments on SED AHHA Regulatory Proposal HCA has submitted comments on the state Education Department’s proposed regulations implementing education law provisions of the new Advanced Home Health Aide (AHHA) program.

The regulations are parallel to the state Department of Health’s regulations proposed previously for AHHA. HCA urged streamlining of the regulations as well as essential clarifications related to allowable tasks, required supervision, training and other areas.

Since well before statute was enacted, HCA has urged that AHHA provisions be flexible for providers and plans and do not impose new excessive mandates and regulatory burdens. We have also sought to ensure: alignment for MLTCs and providers within that the state’s AHHA implementation; funding adequacy for MLTCs, providers and workers; and supportive recognition of nurses in their responsibilities under the program.

HCA has long advocated for flexibility in the training and potential assignment of home health aides, and we appreciate the extensive work underway by the Departments of Education and Health in implementation of this major new change affecting the home care workforce. We will continue to seek ways of fine-tuning this initiative to maximize the benefits for home care, hospice and MLTCs, the patients, health personnel, and the system.

For further information, please contact a member of the HCA Policy Team.

2017 LHCSA Statistical Report and Resources Posted As announced in an alert to members late last week, the state Department of Health (DOH) has posted the 2017 LHCSA Statistical Report and resources to assist LHCSAs in downloading and completing this newly formatted and revised Report on the Health Commerce System (HCS).

The resources include: instructions on downloading a new platform, the Universal Data Collection System, which is used to complete the report; instructions on how to complete each section of the report; frequently asked questions; and five videos on the new 2017 LHCSA Statistical Report. The videos explain how to: download and install the new software; download the report; open the report; enter data; and validate, finalize and upload the report.

All of these resources are located on the HCS main page under “Newsroom Highlights.” In the future, these items can also be accessed by clicking on “My Content” on the top tool bar, going to “Documents by Group,” then “View all Document Groups,” “Long Term Care,” “Training,” “Home Care,” and lastly “LHCSA Statistical Report.”

DOH notes that only those LHCSA staff in the Administrator role on the HCS as of the first week of August have access to the Healthcare Financial Data Gateway which is needed to download the software and the Report.

HCA strongly recommends that all agencies review the videos and instruction documents so that you become familiar with the 2017 revised Statistical Report and can complete it by the November 16 deadline.

Continued on next page

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

Volume 3, No. 34 September 4, 2018 

Continued from previous page Reminder: New Registration Requirement and Enforcement Penalties for Non-Compliance HCA reminds LHCSAs that there is a new annual LHCSA registration process and the Statistical Report has been amended to capture the necessary registration information. Very importantly, the Statistical Report is the only means for fulfilling this new registration requirement by the November 16 deadline, or else possibly face the following potential penalties: 

A $500 fine for each month, or part of a month, that the organization is not registered.

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LHCSAs that are not registered will not be allowed to operate until they become registered.

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LHCSAs that fail to register timely for two years (not necessarily consecutive) may have their licenses revoked.

Also, DOH has included compliance with DOH reporting requirements such as statistical reports as one of the criteria that managed long term care (MLTC) plans are required to consider in implementing the recent limits on the number of LHCSAs that MLTCs can contract with.

Any questions, concerns or comments regarding the 2017 LHCSA Statistical Report should be sent to DOH at HCStatRpts@health.ny.gov (please copy Andrew Koski at akoski@hcanys.org).

DOH Releases Guidance on MLTC-LHCSA Limits As reported in an HCA alert, the state Department of Health (DOH) on August 20 released guidance related to the 2018-19 state budget provision that limits the number of Licensed Home Care Services Agencies (LHCSAs) with which Managed Long Term Care (MLTC) partial capitation plans may contract.

The guidance is available at https://hca-nys.org/wp-content/uploads/2018/08/MLTC-LHCSA-Limits-_082018.pdf.

HCA had submitted comments on a draft version. Some of these comments were included in the final version.

Unfortunately, many industry edits and recommendations were still not incorporated, and HCA will continue to advocate for flexibility and accommodations for plans and LHCSAs in implementing these changes. The guidance covers:

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How the limit on the number of MLTC-LHCSA contracts is computed for 2018 and 2019 and later, with examples, including when a LHCSA has multiple site contracts with the same MLTC plan, and treatment of Independent Practice Associations (IPAs);

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Factors that MLTC plans need to consider in establishing limits;

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Enrollee notification;

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Network adequacy;

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Exceptions to the limits and how exceptions are processed by DOH; and

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

Volume 3, No. 34 September 4, 2018 

Continued from previous page 

Compliance by plans.

HCA advises members to read the entire guidance and submit any questions to LHCSAExceptions@health.ny.gov (and copy Andrew Koski at akoski@hcanys.org).

DOH Distributes FAQs on LHCSA Moratorium On August 20, the state Department of Health (DOH) released a Frequently Asked Questions (FAQs) document on the recent state budget provision that placed a two-year moratorium on the “processing and approval of applications seeking licensure” of a Licensed Home Care Services Agency (LHCSA) under Public Health Law section 3605.

The FAQs are at http://www.health.ny.gov/facilities/cons/docs/lhcsa_moratorium_faq.pdf.

The FAQs cover: 

Changes in business entity type (these are subject to the moratorium);

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Documentation required under the “serious concerns” exception;

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Applications submitted prior to April 1, 2018 but which have not received Public Health and Health Planning Council approval or contingent approval (these are subject to the moratorium);

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Management agreements (these are not subject to the moratorium);

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Home care licenses that are not active. In such cases (meaning there are no clients and no employees), the licenses cannot be sold or transferred, and the LHCSA is required to surrender its license to DOH;

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Refund of LHCSA application fee;

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Application process for adding sites/services/counties (these are not affected by the moratorium);

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Many issues related to the Assisted Living Program (ALP)/LHCSA exception; and

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The LHCSA application process after the moratorium expires (applications will be accepted pursuant to the statutes and regulation in effect at that time).

The FAQs should be reviewed in tandem with other guidance issued by DOH at https://www.health.ny.gov/ facilities/cons/.

Additional questions regarding the application moratorium can be sent to homecareliccert@health.ny.gov.

Any members who submit questions to DOH are invited to copy HCA on the e-mail message (copy Andrew Koski at akoski@hanys.org) or alert us to your questions so that we can track DOH’s response or otherwise support you in gaining clarification.

Continued on next page

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

Volume 3, No. 34 September 4, 2018 

Continued from previous page HCA has been in steady contact with DOH about areas of overreach in the application of the moratorium that appear counter to the budget’s intent. Thus far, DOH has been severely constrained in its remedies by detailed specifics of the adopted change in law.

The 2018-19 state budget authorized additional changes that impact LHCSAs, including a limit on MLTCLHCSA contracts (see related p. 5 story); a new LHCSA registration process (see related p. 4 story); new LHCSA and Fiscal Intermediary (FI) cost reports; a new LHCSA public need methodology; and a ban on FI “false or misleading” advertising. HCA will provide further information on these changes as more guidance is issued.

Guildnet Files Request to Close Guildnet had filed a request with the state to stop offering its managed long term care (MLTC) plan.

The state Department of Health (DOH) confirmed to HCA that the nonprofit has stopped enrolling new members. As reported in the press, Guildnet desires to cease operations on December 1, 2018. DOH has indicated that they have not approved this timeline.

As of August 2018, Guildnet has 7,316 members in its MLTC plan, 478 in its Medicaid Advantage Plus plan and 417 in its Fully Integrated Duals Advantage (FIDA) plan – all in New York City.

In September 2017, DOH released guidance (https://www.health.ny.gov/health_care/medicaid/redesign/ mrt90/mltc_policy/17-02.htm) that covers plan closures; service area reductions; and mergers, acquisitions and other arrangements.

HCA has been meeting with state legislative and administrative offices emphasizing our concerns for all parties over implications of the closure, as well as related concerns about: payment adequacy to plans and recalibrated rates; the steady flow of new mandates; and other challenges to the MLTC and provider network in the state. We continue to emphasize to the state the necessity of providing plans with payments that are adequate to cover their services and any new mandates like the increased minimum wage, Community First Choice Option, and more.

HCA Begins Active Steps on Pediatric Iteration of HCA Sepsis Tool HCA has begun active efforts to develop a pediatric iteration of its unique Home Care Sepsis Tool.

The current HCA tool, which has been adopted by home agencies throughout the state as well as in other states, incorporates adult measures in assessment areas related to sepsis criteria. Measures differ for children, and, in fact, have variation across age groups.

HCA, with the assistance of Sepsis Alliance, has been working to engage pediatricians with expertise in sepsis care for groundwork on a pediatric version of the HCA sepsis tool. This past week, HCA, IPRO, HCA sepsis clinical leader Amy Bowerman of Senior Network Health/VNA of Utica and Sepsis Alliance conferenced with sepsis pediatric experts and outlined a plan of action.

Continued on next page

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

Volume 3, No. 34 September 4, 2018 

Continued from previous page Dr. Elizabeth Alpern, a pediatric emergency physician at Northwestern University, provided technical support and has now networked HCA with the national Children’s Hospital Association’s Improving Pediatric Sepsis Outcome Collaborative (IPSO) for next levels of input.

Children, especially the very young and those with compromised immune systems, are among the highest at risk for sepsis; and, of course, public education and awareness are critical for all families and children, as too many cases exist where healthy children fall victim to this preventable and treatable condition (especially when identified early). Indeed, 12-year-old Rory Staunton’s tragic loss to sepsis following a cut playing basketball is what changed (and continues to change) the New York State landscape of sepsis screening and intervention in this state and in other states due to the advocacy of his parents, Ciaran and Orlaith. The Stauntons will also be part of our work in this pediatric initiative.

HCA will keep members apprised of the developments; meanwhile, stay informed through HCA’s sepsis website at http://stopsepsisathomeny.org.

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

HIRING

Staff Development Education Supervisor – Home Health Full Time 9am-5pm NYU Winthrop Hospital’s Home Health Agency ranks as a top-performing US Home Health Agency! Come join our stellar team of nurses, therapy professionals and social workers who provide home health care to our maternal, child and adult population.

We have an exceptional opportunity for a Staff Development Education Supervisor to be responsible for home health staff education, development and professional growth, including our orientation program (didactic & practical components). With collaboration of the Director of Quality Management/Staff Development and the department’s management team, you will identify, develop and plan appropriate staff development programs to support agency needs to provide optimum patient outcomes. Working with the Administrator and the Director of Patient Services, you will research, coordinate & establish new programs for the agency.

We require:  NYS RN License  BSN with 2 years’ experience in education in a Certified home care agency  2-3 years clinical nursing practice  2 years community health nursing  Good communication/computer skills NYU Winthrop Hospital is located on Long Island in Western Nassau County just 25 miles from Manhattan. Email HRHomeCare@nyuwinthrop.org.

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

Volume 3, No. 34 September 4, 2018 

HCA Offers Key Input to DOH on CFCO-MLTC/PACE HCA continues to press for procedural efficiency, clarity and overall workability as the state Department of Health (DOH) develops guidelines and requirements for implementation of the Community First Choice Option in Managed Long Term Care (MLTC) plans and Programs of All-Inclusive Care for the Elderly (PACE).

This past week, DOH held a CFCO advisory group meeting to discuss its latest plans and proposed procedures for implementation. While the procedures are very much in a “work-in-progress” stage, DOH is looking to move at a steady pace toward implementation. HCA and member MLTCs have been concerned about the many CFCO requirements and the nature, parameters and financing of CFCO-covered services versus traditional services covered under MLTC/PACE. At this past week’s meeting, HCA recommended technical and policy efficiencies and clarifications, as well as ways to promote adaptability to plan operations, clarification of payment rules, seamlessness with existing MLTC/PACE procedures, wherever possible, and mitigation of fair-hearing risks. HCA has also previously, and again this past week, made broader model recommendations for alternative ways of implementing CFCO that would provide options to largely avoid the myriad issues in the current DOH approach.

DOH is inviting input over the next several weeks. The DOH materials outlining the presentation and websites for input can be viewed at https://hca-nys.org/wp-content/uploads/2018/09/CFCO-Overview-8-2918-Read-Only.pdf.

HCA Submits Recommendations on Universal Billing Codes Last week, HCA sent recommendations to the state Department of Health (DOH) on its recently implemented universal billing codes for Medicaid home and community-based long term care services provided to managed care plans.

Some of HCA’s recommendations, based on feedback from members, included the need for: 

Separate codes/modifiers to allow for billing for RN and LPN services by visit;

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Separate codes/modifiers for physical therapy assistants (PTAs) and occupational therapy assistants (OTAs);

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A separate code for telehealth monitoring per day;

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A new code for telehealth originating site fee (DOH has agreed to do this); and

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An additional code and/or modifier in cases where more than two consumers are being provided home health aide services in the same household (DOH has agreed to do this).

HCA will keep members informed of DOH’s response and any resulting changes in the codes/modifiers. For more information, contact Andrew Koski at (518) 810-0662 or akoski@hcanys.org.

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

Volume 3, No. 34 September 4, 2018 

CMS Releases 2016 Home Health Agency Medicare Utilization and Payment Data The U.S. Centers for Medicare and Medicaid Services (CMS) has posted the fourth annual Medicare Home Health Agency (HHA) Utilization and Payment Public Use File (PUF) with data for 2016.

The PUF summarizes information on services provided to Medicare beneficiaries by home health agencies. It contains information on utilization, payment, submitted charges, and demographic and chronic condition indicators organized by CMS Certification Number (6-digit provider identification number), Home Health Resource Group (HHRG), and state of service.

The 2016 PUF has information for 10,139 home health agencies, almost 6 million claims, and $18 billion in Medicare payments for 2015. CMS protects beneficiaries’ personal information in all public data releases.

The updated 2016 data and supplemental information can be accessed at: https://www.cms.gov/ResearchStatistics-Data-and-Systems/Statistics-Trends-and-Reports/Medicare-Provider-Charge-Data/HHA.html.

HCA has compiled the 2016 Medicare Utilization and Payment data for all of the HHAs in New York and has posted this to our HCA Data Page at https://hca-nys.org/hca-data. See the section labelled “Home Health and Hospice Medicare Resources.”

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 access to reimbursement and premium rates. 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, the HCA Data link will appear in the site menu at the top right (though you may have to refresh your browser first). Simply e-mail HCA’s Communications Director Roger Noyes at rnoyes@hcanys.org if you do not yet have an HCA website account or would like further information.

CMS Announces Key Dates for Hospice Public Reporting The U.S. Centers for Medicare and Medicaid Services (CMS) is reminding hospice providers to make sure that their Hospice Item Set (HIS) records are complete and accurate prior to submission.

CMS wants hospice providers to submit all HIS modification or inactivation records prior to the “freeze date” prior to public reporting.

Hospices should check CMS’s Key Dates webpage (https://www.cms.gov/Medicare/Quality-Initiatives-PatientAssessment-Instruments/Hospice-Quality-Reporting/Public-Reporting-Key-Dates-for-Providers.html) for deadlines to meet when modifying data so that those modifications are reflected in your corresponding HIS Provider Preview Reports and on Hospice Compare.

Additional information can be found at https://www.cms.gov/Medicare/Quality-Initiatives-Patient-AssessmentInstruments/Hospice-Quality-Reporting/HQRP-Requirements-and-Best-Practices.html.

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

Volume 3, No. 34 September 4, 2018 

DOH Releases 2019 Minimum Wage Survey for Hospices ALP Survey Also Posted

The state Department of Health (DOH) recently issued a Dear Administrator Letter (DAL) to Hospice providers requesting information via a survey to assess the impact of the state’s minimum wage increase from January 1, 2019 through January 1, 2021.

The DAL can be downloaded at https://hca-nys.org/wp-content/uploads/2018/09/2019-Hospice-surveyMW-DAL.pdf. The survey is at https://www.surveygizmo.com/s3/4543360/Minimum-Wage-Survey-Hospice2019.

The Minimum Wage Act (Article 19 of New York State Labor Law) sets benchmarks for minimum wage through 2021. DOH is surveying health care providers to determine the financial impact of scheduled minimum wage increases over the coming years.

In completing the survey, hospices should use employee wage data from April 1, 2018 through June 30, 2018 for your facility. If your facility has locations in more than one minimum wage region, you will be required to provide the minimum wage data for each region within the survey. The three minimum wage regions are: New York City, Northern Metropolitan (includes Nassau, Suffolk and Westchester counties) and the remainder of the state. All direct care worker hours for which your facility can produce a payroll record, including direct contracted staff, should be included in your counts.

Hospices must electronically submit their survey by close of business on Wednesday, September 19, 2018 and DOH says it will not be granting extensions. If your facility is not impacted by the minimum wage increase for calendar years 2019 through 2021, or you choose to opt-out of the survey, you are still required to complete questions 1-3 and 5-6 of the survey. The CEO or CFO of your facility will be required to attest to the validity of the information provided.

HCA strongly encourages hospice members to complete this important survey. The Department will only increase providers’ Medicaid rates based on the data submitted in this survey.

Specific questions regarding DOH’s minimum wage survey can be sent to hospice-rates@health.ny.gov.

ALP Survey DOH has also released a survey for Assisted Living Programs (ALPs) to obtain information regarding the state’s minimum wage increase from January 1, 2019 to January 1, 2021. The survey is at https:// www.surveygizmo.com/s3/4543570/Minimum-Wage-Survey-ALP-2019 and also must be submitted by September 19, 2018.

Questions regarding the ALP minimum wage survey can be sent to ALP-rates@health.ny.gov.

For further information, contact the HCA Policy staff.

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

Volume 3, No. 34 September 4, 2018 

Join HCA for Downstate LHCSA and HCC Forum on Oct. 4 Please join your LHCSA and HCC colleagues, HCA staff and Board Members on October 4 in New York City for an exchange of valuable information, advocacy concerns and recommendations for action in support of LHCSAs and HCC members. Some of the vital issues to be covered at our upcoming Downstate LHCSA Forum include:         

LHCSA-MLTC contract limits LHCSA moratorium and need methodology LHCSA Statistical Report and registration process 24-hour/live-in cases CDPAP Fiscal Intermediary authorization process Regulatory changes Uniform billing codes Additional issues or concerns Value Based Payments, phase 2

This forum is for HCA members only, but you must register and RSVP at https://hca-nys.org/wp-content/ uploads/2018/08/October-4-2018-Downstate-LHCSA-and-HCC-Forum-Registration-Form.pdf.

Join Upcoming DOH-Led Emergency Preparedness Webinars, Exercise and HCA Preparedness Conference Home care and hospice providers throughout New York State are urged to participate in upcoming webinars and a training exercise offered by the state Department of Health Office of Health Emergency Preparedness (OHEP) in September and October.

These programs complement an HCA conference on Emergency Preparedness hot-topics and best-practices also offered in September, during Preparedness Month. Details are below.

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OHEP Webinar: Exercises 101 (September 7, from 1 to 2 p.m.) acquaints providers with the various types of preparedness exercises, stressing why they are an integral component of agencies’ ongoing preparedness activities (Register at https://nylearnsph.com/Public/Catalog/ Description.aspx?u=kM6WW0gCRpkcHvKm5KI41OYokNI7litY4EKe%2fwzjrVbfTW89SJ0dRm6k7rMi5gShAURjR%2fdXWRE%3d).

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OHEP Webinar: Writing an After-Action Report (September 21, from 1 to 2 p.m.) will help providers correctly execute After-Action Reports, which are required as part of any exercise. These reports include: what was supposed to happen, what actually occurred, what went well (strengths), areas for improvement identified during an exercise, and the timeline for incorporating necessary improvements (Register at https://nylearnsph.com/Public/Catalog/ Description.aspx?u=kM6WW0gCRplE1yOOIY2AMQMayrnuXTME82ZlEqgh7ow84ZUvQlG%2boU8xc2O75k4RHuqrNAJVnew%3d).

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Exercise: Interoperable Communications Drill (October 9) will begin with an Integrated Health Alert Notification System (IHANS) notice at 9 a.m. through the Health Commerce System (HCS). Agencies will have until late morning to complete the drill and demonstrate their ability to receive information by testing whether the agency has appropriate roles assigned and current contact

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information in the HCS. The following roles should be assigned and up-to-date in the HCS Communications Directory: Administrator; Director, Home Care Patient Services or Patient Services for hospices; Emergency Response Coordinator; and HPN Coordinator.

These programs align with HCA’s September 27 conference on Emergency Preparedness hot-topics that will offer many other additional topics distinct from the DOH webinars, including cybersecurity, resources for assisting in the development of required home care and hospice emergency preparedness plans, a session on key considerations for developing a truly all-hazards approach to emergency preparedness planning, and a table-top exercise that qualifies as one of the elements for meeting the federal Conditions of Participation requirement to test your emergency preparedness plan. Please register at https://hca-nys.org/wp-content/ uploads/2018/08/HCA-Emergency-Preparedness-Conference-9-27-18-Brochure.pdf.

Sexual Harassment Training and Guidance Released The state has released a draft sexual harassment policy, training and related guidance for public comment.

The materials are located at https://www.ny.gov/programs/combating-sexual-harassment-workplace and include:     

Minimum standards for employer sexual harassment prevention policies and trainings Model sexual harassment prevention policy Model sexual harassment complaint form Model training (script book and PowerPoint presentation) Frequently Asked Questions (FAQs)

Starting October 9, 2018, employers are required to adopt the state’s model sexual harassment prevention policy or revise their own policies to meet the state’s minimum standards, and provide annual sexual harassment prevention training to all employees.

The draft FAQs clarify that by January 1, 2019, employers must provide all employees with sexual harassment prevention training, either using the model created by the state or a comparable version that meets the state’s minimum standards. Furthermore, new employees or employees who start after January 1 must complete the requisite annual sexual harassment training within 30 calendar days of hire.

The sexual harassment materials are due to recent state budget provisions that require all employers to: adopt a sexual harassment prevention policy and provide related training; extend sexual harassment protections to nonemployees in the workplace; ban enforcement of arbitration clauses for sexual harassment claims; set forth a mandatory waiting period and revocation period for non-disclosure agreements related to sexual harassment claims; and require entities that bid for state contracts to affirm compliance with sexual harassment training laws.

The state law, along with a related New York City (NYC) law, is discussed in an HCA memo at https://hcanys.org/wp-content/uploads/2018/04/042318SexualHarrassmentMemoJacksonLewis.pdf.

Earlier in August, the New York City Commission on Human Rights posted a workplace poster on sexual harassment that must be displayed by all NYC employers starting September 6, and a fact sheet that

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employers are required to provide to new employees upon hire (see the August 20 edition of The Situation Report for more information and links to materials).

The Stop Sexual Harassment in NYC Act: mandates employer training on sexual harassment prevention (for employers of 15 or more employees); expands NYC Human Rights Law coverage for gender-based harassment claims to all employers; extends the statute of limitations for gender-based harassment claims under the Human Rights Law from one to three years; and extends protections to non-employees in the workplace.

LawTalk: Intricate Requirements Govern OT Pay for Salaried Employees

By Christopher Stephens, Attorney at Jackson Lewis, PC Many employers think that paying an employee on a salary basis automatically means that you do not have to pay them overtime. Employers frequently make this incorrect assumption across all industries, including health care. Readers of this article, however, will not make this common mistake.

The federal Fair Labor Standards Act (FLSA) generally requires that employers pay employees overtime, at a rate of one and half times their regular rate, for every hour worked over 40 in a given work week. The FLSA also creates several exemptions from this requirement. All of the so-called “white collar” exemptions (administrative, executive, and professional) have one thing in common: the “salary-basis test.” In order to properly classify an employee as exempt under one of those exemptions, an employer must pay that employee a salary—meaning that the employee generally receives the same amount of pay regardless of the number of hours worked—of at least $455 per week (or $23,660 per year). Under federal law, t is important to note that New York imposes a higher salary threshold than federal law.

The applicable state threshold varies depending on the location and size of the employer. For large employers (defined as those with 11 or more employees) the threshold is currently $975 per week ($50,700 per year) in New York City; $825 per week ($42,900 per year) in Nassau, Suffolk, and Westchester Counties; and $780 per week ($40,560 per year) in all other areas of the state.

Clearing this threshold requirement is not the end of the story, however. All exemptions also have a second prong, known as the “primary duties test.” This test varies depending upon the particular exemption that an employer is looking to apply. The most common exemptions include the executive, administrative, and professional exemptions.

The professional exemption is often particularly relevant in the home care context. Employees may qualify for the professional exemption if, in addition to being paid a salary as described above, their primary duty is the performance of work requiring advanced knowledge that involves the exercise of discretion and judgment. The advanced knowledge must be in a field of science or learning, and must be customarily acquired by a prolonged course of specialized intellectual instruction.

Physicians typically qualify for this exemption. So do some Registered Nurses (RNs). Licensed Practical Nurses (LPNs), Certified Nurse Assistant (CNAs), and other similar employees, on the other hand, typically do not qualify.

Some other exemptions relevant to the home care industry do not have a “salary basis” test. Take the companionship exemption, for example, which applies to individuals who provide companionship services to

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a person who requires assistance caring for themselves. This exemption, upon which many employers rely, has been narrowed considerably in recent years.

Specifically, the type of work that qualifies as “companionship services” has been refined to expressly exclude “household work” that benefits any other members of the household, aside from the person who needs assistance caring for themselves. In addition, third-party employers are no longer permitted to claim this exemption, as HCA has extensively reported.

It is important to note, however, that exemptions are analyzed on a case-by-case basis depending on the unique facts of each employee’s particular situation. Employers should be wary of making assumptions or applying general rules in lieu of conducting a thorough, individualized analysis.

There is more to classifying employees as exempt than simply paying them a qualifying salary. In addition, employers must ensure that the employee’s primary duties satisfy one of the specifically defined exemptions available under the law. Each employee’s situation is unique, and one’s duties should be closely scrutinized before making a decision to classify the employee as exempt.

LawTalk is a monthly series of articles prepared by attorneys at the firm for HCA’s counsel. Please note that HCA LawTalk articles: are for general, informational purposes; are not legal “advice”; and do not create an attorneyclient 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.

RWJF Grant Opportunity The Robert Wood Johnson Foundation (RWJF) has issued a Request for Proposals for research that supports new scientific evidence on ways to optimize delivery and financing systems in order to improve health and reduce inequities.

Under its Systems for Action (S4A), RWJF aims to apply new evidence about ways of aligning the delivery and financing systems for medical, social, and public health services that support a Culture of Health.

In 2018, the program will award up to six grants of up to $250,000 over four years.

To be eligible, applicants must either be a public entity or a nonprofit organization in the U.S. that is tax-exempt under Section 501(c)(3) of the Internal Revenue Code. Multi-organization consortia are encouraged to apply as long as a single eligible organization is designated as the primary applicant.

Letters of Intent must be received no later than September 12, 2018. Upon review, selected applicants will be invited to submit a full proposal by October 10, 2018.

More information and the complete RFP are at https://www.rwjf.org/en/library/funding-opportunities/2018/ systems-for-action—systems-and-services-research-to-build-a-cul.html.

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



Upcoming Deadlines

Requirement/Change

More Information

Transition Period for using Health Insurance April 1, 2018 to Claim Number (HICN) or new Medicare December 31, 2019 Beneficiary Identifier (MBI)

https://www.cms.gov/Medicare/NewͲ MedicareͲCard/index.html

Wage Parity Certification Forms due for LHCSAs and Fiscal Intermediaries in NYC, Long Island and Westchester

September 1, 2018

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

Deadline for NYC employers to post sexual harassment poster and give new employers related fact sheet

September 6, 2018

https://www1.nyc.gov/assets/cchr/downloa ds/pdf/materials/SexHarass_NoticeͲ 8.5x11.pdf

https://www1.nyc.gov/assets/cchr/downloa ds/pdf/materials/SexHarass_Factsheet.pdf

2019 hospice minimum wage survey due

September 19, 2018

https://www.surveygizmo.com/s3/4543360/ MinimumͲWageͲSurveyͲHospiceͲ2019

2019 Assisted Living Program minimum wage survey due

September 19, 2018

https://www.surveygizmo.com/s3/4543570/ MinimumͲWageͲSurveyͲALPͲ2019

MLTC/LHCSA contract limits go into effect

October 1, 2018

Emergency Preparedness Interoperable Communications Drill

October 9, 2018

See article in this week’s newsletter

All NY employers are required to adopt sexual harassment prevention policies and provide annual training

Effective October 9, 2018

www.labor.ny.gov https://www1.nyc.gov/site/cchr/index.page

LHCSA proposed public need methodology

Comments due October 12, 2018

https://hcaͲnys.org/wpͲ content/uploads/2018/07/9594a968Ͳ7de4Ͳ 4c67Ͳb52dͲ62fa0234c9cb.pdf

2017 LHCSA Statistical Report due

November 16, 2018

https://commerce.health.state.ny.us/public/ hcs_login.html

MLTC enrollment lockͲin starts

December 1, 2018

https://www.health.ny.gov/health_care/me dicaid/program/update/2018/2018Ͳ 06.htm#mltc

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Update Provided on Changes in SPAs and Section 1915 Waiver Review Process On August 16, the U.S. Centers for Medicare and Medicaid Services (CMS) provided an update on recent changes to the State Plan Amendment (SPA) and Section 1915 Waiver review processes.

At the end of 2017, CMS issued a bulletin (see https://www.medicaid.gov/federal-policy-guidance/ downloads/cib110617-2.pdf) announcing an initiative to revamp these processes, highlighting four specific improvements: 1) a call with states within 15 days of receipt of each submission to review the state’s request and any critical timelines to help expedite the review process; 2) launch of new tools available to states to facilitate the development of complete submissions; 3) implementation of a strategy to reduce a significant backlog of state requests; and 4) expanding the use of MACPro, a web-based system for processing requests.

On August 16, CMS issued a new bulletin with updates and additional changes under consideration for this process (see https://www.medicaid.gov/federal-policy-guidance/downloads/cib081618.pdf).

In June, CMS established a new triaging protocol that will determine the path that SPAs and 1915 waivers will follow from submission to adjudication. The protocol includes three potential paths that a SPA or 1915 waiver can follow – expedited, escalation, and standard review paths.

CMS is also implementing new procedures to prevent a future backlog of amendments on Requests for Additional Information (RAIs).

CMS Releases Guidance on Medicaid Section 1115 Waiver Demonstrations The U.S. Centers for Medicare and Medicaid Services (CMS) released a letter to State Medicaid Directors that describes CMS’s current approach to calculating budget neutrality expenditure limits for Medicaid section 1115(a) demonstration projects.

The letter is at https://www.medicaid.gov/Federal-Policy-Guidance/downloads/SMD18009.pdf.

The letter also outlines recent changes that CMS made in its approach to budget neutrality for demonstration project extensions in order to “strengthen fiscal accountability and prevent the federal government’s exposure to excessive expenditures under section 1115(a) demonstrations.”

Lastly, the letter also announces a new monitoring tool to support a more streamlined and standardized approach to expenditure reporting for Medicaid demonstrations.

These waivers are important for providers because they are the means that many states take to providing enhanced long-term services and supports. New York’s managed long term care program is authorized under an 1115 waiver.

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NYSE-CON Changes Made The state Department of Health (DOH) has announced upgrades to the New York State Electronic Certificate of Need (NYSE-CON) application system.

These changes include a redesign of the application submission for streamlined navigation, improved layouts and on-screen instructions. A new Sites Tab automatically populates currently certified beds and services, while more clearly indicating which sites are part of the application submission.

Training Guides for the Application Submission process and Sites Tab will be at: https://www.health.ny.gov/ facilities/cons/nysecon/training/.

DOH Posts Regulatory Agenda The state Department of Health (DOH) has posted regulatory actions that are under consideration for proposals this year. Not all of these listed items will actually materialize into formal regulatory proposals this year, but are listed as on DOH’s radar. Should formal regulation follow, HCA will be engaged in the review and advocacy process.

The information is at https://docs.dos.ny.gov/info/register/2018/august29/regulatory.pdf.

Some areas of interest include: 

Amend the regulation to update the need methodology used to estimate the need for Certified Home Health Agencies (CHHAs).

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Amend the regulation to allow for minimum wage costs for CHHAs.

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Amend the regulation to update the need methodology used to estimate the need for hospice care and services.

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Amend the regulation to allow for added costs due to the increases in minimum wage for personal care services.

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Add or amend regulations to set forth the requirements for the Community First Choice Option (CFCO).

Providers Reminded About Medicaid Revalidation All Medicaid providers are required to revalidate their enrollment in the program every five years.

The state Department of Health (DOH) Bureau of Provider Enrollment has sent providers initial and final revalidation letters to their correspondence address informing them of the revalidation requirement.

However, some providers who were sent revalidation letters have not responded. To promote provider compliance, the Bureau has sent out a final revalidation letter.

Providers who do not revalidate will receive a termination letter and will be terminated.

Continued on next page

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Continued from previous page Terminated providers will not be able to participate in Medicaid Managed Care (MMC) networks and Children’s Health Insurance Program (CHIP), in addition to being unable to bill for fee-for-service (FFS) Medicaid.

Additionally, future revalidation notification letters will be automatically sent to providers. An initial letter will be sent out and, if after 90 days the provider has not responded, a second and final letter will be sent out.

Providers who do not revalidate within 45 days of the final letter will receive a termination letter.

DOH encourages providers to maintain their correspondence address to ensure the letters are sent to the correct address. More information on revalidation is at https://www.emedny.org/info/ProviderEnrollment/ revalidation/index.aspx.

If you have any questions about the revalidation process, or maintaining your provider file, please visit www.eMedNY.org, contact the eMedNY Call Center at 1-800-343-9000 or e-mail providerenrollment@health.ny.gov.

HEPC Meetings Scheduled for Fall Note date changes HCA encourages members and non-member home care and hospice providers and managed care plans to get involved with their local Health Emergency Preparedness Coalitions (HEPCs).

HEPCs are coalitions of health care providers, local and state emergency management and local public health preparedness officials that develop and coordinate emergency preparedness across the continuum, including readiness among individual health sectors, holding exercises and ‘hotwashes,’ conducting hazard and vulnerability assessments, and other important activities.

The following are upcoming HEPC meetings; note that some dates have changed since last reported in the August 20 Situation Report.

Those interested in participating should contact Andrew Koski at akoski@hcanys.org.

HEPC Meetings Western New York – September 12, 2018 Finger Lakes – September 17, 2018 Central New York (first quarter meeting) – September 20, 2018 Long Island – September 25, 2018 (NEW DATE) Capital District – September 25, 2018 Lower Hudson Valley – September 26, 2018 (NEW DATE) North Country – September 27, 2018 Bronx – October 2, 2018 Western Region – October 15, 2018 North Country – November 26, 2018 Capital District – December 4, 2018 (NEW DATE) Finger Lakes – December 17, 2018 Continued on next page

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Continued from previous page HCA and the New York State Association of Health Care Providers (HCP) work with all home care and hospice providers to support their roles in emergency preparedness under a grant from the state Department of Health Office of Emergency Preparedness. This includes participating in HEPC meetings across the state.

Providers and plans are also advised to review the Aware Prepare Update, an excellent resource of upcoming preparedness trainings. It is at https://www.urmc.rochester.edu/emergency-preparedness/training.aspx.

Health Resources 

“Exploring the Growth of Medicaid Managed Care,” by the Congressional Budget Office https://www.cbo.gov/system/files?file=2018-08/54235-MMC_chartbook.pdf

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“Recent and Upcoming Improvements In Hospice Billing and Claims Processing,” by the U.S. Centers for Medicare and Medicaid Services https://www.cms.gov/Outreach-and-Education/Medicare-earning-Network-MLN/MLNMattersArticles/ downloads/SE18007.pdf

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“Functional Need and Frailty in the New York State Managed Long-Term Care Population,” by the state Department of Health https://www.health.ny.gov/health_care/managed_care/mltc/docs/statistical_brief_2.pdf

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“Improving Care and Lowering Costs for Chronic Care Beneficiaries: Implementing the Bipartisan Budget Act,” by the Bipartisan Policy Center https://bipartisanpolicy.org/wp-content/uploads/2018/08/Improving-Care-and-Lowering-Costs-forChronic-Care-Beneficiaries-Implementing-the-Bipartisan-Budget-Act.pdf#page=8

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“Where to Apply for Medicaid and Medicaid Home Care in New York City,” by the New York Legal Assistance Group http://www.wnylc.com/health/print/79/

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“Medicaid Eligibility Verification System (MEVS) and Dispensing Validation System (DVS) Provider Manual” (August 2018 update), by eMedNY https://www.emedny.org/ProviderManuals/AllProviders/supplemental.aspx

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“Influenza Vaccine Payment Allowances — Annual Update for 2018-2019 Season,” by the U.S. Centers for Medicare and Medicaid Services https://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/2018Downloads/ R4124CP.pdf

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“Prevalence of Disabilities and Health Care Access by Disability Status and Type Among Adults — United States, 2016,” by the Centers for Disease Control and Prevention https://www.cdc.gov/mmwr/volumes/67/wr/mm6732a3.htm?s_cid=mm6732a3_w

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

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