September 9, 2019 Edition of The Situation Report

PDGM BOOTCAMP

STATISTICAL REPORTS

CHHA, HOSPICE RATES

LAWTALK

People raved about her session earlier this year, so we’ve got Barbara Katz back for a repeat ‘bootcamp’ on PDGM for clinicians and quality specialists.

Statistical reports are posted.

Bottom line: LHCSAs need to complete them by November 16, including the registration process, or else risk losing ability to operate, bill.

Last week, the state issued CHHA pediatric and hospice residential rates set for a check release date of Oct. 2, in both instances.

Our monthly LawTalk column from HCA counsel examines some new HR and hiring requirements that employers must know about related to persons who are victims of domestic violence.

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Your Source for HOME CARE News, Policy and Advocacy

UPCOMING PROGRAMS Know The Drill: Successful Emergency Planning, Preparedness and Compliance Strategies for Home Care & Hospice Sept. 17 (Troy) Blueprint for OASIS Accuracy: OASIS D-1 Data Set Sept. 23 and 24 Workshop | Sept. 25 COS-C Exam (NYC) PDGM Bootcamp for Clinical Managers and Quality Staff Oct. 23 (Fairport) Find all the details and registration for our upcoming programs and events at https:// hca-nys.org/ events-education/ upcoming-events.

Vol. 4, Issue 31| September 9, 2019

Lawmakers Hold Press Conference on Bill Capping Home Care Hours HCA responds as media blitz suggests momentum for bill coming at January’s start of the state legislative session HCA fielded several media calls for comment last week following a press conference in New York City where State Senator Roxanne Persaud (D-Brooklyn) and supporters pressed for action on a bill to place limits on home care hours worked. A companion bill is being sponsored by Assemblyman Harvey Epstein (D-Manhattan).

The bill (S.6640/A.8064) would effectively eliminate the “13-hour standard” currently permitted by regulation for aide compensation in 24-hour/live-in cases. It would also limit See CAP p. 2

HCA Addresses Congress Directly for Support on PDGM Bill Have you contacted your representative recently? Please act today!

HCA President Al Cardillo is appealing directly to all members of New York’s Congressional Delegation, calling for their co-sponsorship and passage of H.R. 2573, a priority bill which would overturn the approach to “behavioral adjustment” cuts under the Patient Driven Groupings Model (PDGM) and replace these cuts with a more rational, retrospective, and surgical construct for rate adjustments.

See PDGM p. 4

INSIDE Lawmakers Hold Press Conference on Bill Capping Home Care Hours...............1 HCA Addresses Congress Directly for Support on PDGM Bill...............................1

By Popular Demand: Another PDGM Clinical Bootcamp on Oct. 23.....................3 2018 LHCSA Statistical Reports Posted............................................................4 CHHA Peds, Hospice Residential Rates Posted................................................5 HCA Submits Comments on FI Workgroup Recommendations...........................6 New FI Reimbursement Guidance Released....................................................7

HCA Releases New Data for Sepsis Month.......................................................8 HCA, Colleagues Offer Recommendations for NYS Medicaid Mega-Waiver.....10 An Announcement from HCA Sponsor WoundMatrix…......................................10 LawTalk: New Employer Provisions Related to Domestic Violence Victims....12 2019 Guide Ranks Health Insurers...............................................................14 NYS Health Foundation Issues RFP................................................................14 DOH Proposes Revisions to Executive Comp Rule..........................................14 New and Revised CMS Instructions for PDGM Billing......................................15 Health Care Resources................................................................................16

The Situation Report: the Home Care Association of New York State CAP from p. 1 the number of hours an aide could work (with some exceptions for aides who choose to work longer shifts voluntarily). Hours would be capped at a 12-hour workday and 50-hour workweek.

This bill has arisen in the wake of litigation, emergency rulemaking and, most recently, a New York Court of Appeals decision on the 13-hour standard over the past several months. (HCA has covered this issue extensively for the membership.)

Throughout the 2019 state legislative session that adjourned in June – and in our recent post-session work – HCA’s advocacy and government-affairs teams have reinforced, in meetings with the Legislature and Administration, the essential role of home care aides in the delivery system and the priority of supporting and securing compensation and employment supports that reflect the critical value of these caregivers. While acknowledging the noble intent of this bill, we have also focused legislators on our concerns about some of its serious shortcomings and problems.

Among many serious issues, this bill would impose a multibillion-dollar cost impact on the home care system, and it would do so seemingly heedless of myriad situations where some measure of staff assignment flexibility is necessary for expeditiously admitting patient-care cases to home care, especially amid chronic workforce shortages, and other factors. The bill creates significant, further gaps in the system that would demand immediate redress, yet it makes no such coinciding action to rectify these gaps (like expanded training and recruitment, or prevention of unnecessary institutionalization that could result from the bill, etc.).

Last week’s press conference included strong rhetoric pressing the case for the hard limits embodied by the bill, suggesting a swell of political momentum being built this summer and fall, well ahead of the 2020 legislative session, with sponsors calling this legislation a priority.

HCA is redoubling our strategy for reconsideration and tabling of this legislation as we seek to redirect the Home Care Association of New York State (HCA) 388 Broadway, 4th Floor, Albany, NY 12207 Tele: 518-426-8764; Fax: 518-426-8788; Website www.hcanys.org

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The Situation Report is a weekly publication of the Home Care Association of New York State (HCA).

Unless otherwise noted, all articles appearing in The Situation Report are the property of the Home Care Association of New York State. Reuse of any content within this newsletter requires permission from HCA. Al Cardillo President and CEO acardillo@hcanys.org Roger L. Noyes Director of Communications, Editor of The Situation Report rnoyes@hcanys.org Rebecca Fuller Gray Executive V ice President for Clinical and Program Affairs rgray@hcanys.org Patrick Conole Vice President, Finance & Management pconole@hcanys.org Andrew Koski Vice President, Program, Policy & Services akoski@hcanys.org Alyssa Lovelace Director for Policy and Advocacy alovelace@hcanys.org Lauren Ford Director of Program Research, Development and Policy lford@hcanys.org Laura Constable Senior Director, Membership & Operations lconstable@hcanys.org Celisia Street Director of Education cstreet@hcanys.org Mercedes Teague Finance Manager mteague@hcanys.org Jenny Kerbein Director of Governance & Graphic Design jkerbein@hcanys.org Billi Wilson Manager, Meetings & Events bwilson@hcanys.org Teresa Brown Administrative Assistant tbrown@hcanys.org

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discussion to productive support and solutions that workers, patients and agencies need with regard to workforce. Indeed, workforce recruitment and retention solutions are among HCA’s highest priorities, inclusive of hour, wage and compensation coverage being duly provided through the Medicaid program, which is responsible for approximately 87 percent of all home care aide wage-related costs.

At a time of severe Medicaid cost-constraints, HCA has also advanced additional efficiency measures, training initiatives and other policy supports for the home care workforce that are part of HCA’s own legislative package, introduced this past legislative session. These and other workforce solutions are a continuing subject of planning with HCA’s members in the follow-up to our summer regional strategy sessions, our Joint Committee on Workforce with the New York State Hospice and Palliative Care Association, and a range of other development vehicles.

Please stay tuned for further updates on this serious development. In the meantime, recent news reports quoting HCA on the matter are available at the links below: 

“New York bill would ban 24-hour workdays for home health aides,” Times Union (https://tinyurl.com/y5h3btu6)

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“State Democrats push home health aide reform,” Politico New York (https://tinyurl.com/y56ay3cw)

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“State bill would cap hours for home-care workers,” Crain’s Health Pulse (https://tinyurl.com/y3sn7ucu)

By Popular Demand: Upstate Version of PDGM Clinical Bootcamp Coming Oct. 23 Near Rochester “Thank you so much for coordinating this educational opportunity. It was by far the best PDGM education session I have participated in. Barbara [Katz] is a dynamic presenter who is thought-provoking and insightful. Many times I leave these sessions with thoughts or a confirmation of work to be done, but for this session I left with real action plans to implement within my agencies!”

Following a highly raved-about session earlier this year (see the quote above from one attendee), HCA is bringing back clinician expert Barbara Katz, RN for another installment of her PDGM Bootcamp for Clinical Managers and Quality Staff, this time on October 23 in Fairport, near Rochester, to accommodate Western, Central and other Upstate New York providers.

Clinical managers will leave this program with specific techniques to support coding, scoring and billing, all while using the least amount of resources to produce the best outcomes. Topics include: optimizing complex care, episode utilization and case management, interdisciplinary teamwork, care coordination and collaboration. The session will also describe key PDGM measures and monitoring techniques to optimize efficiency, achieve success and prevent pitfalls.

Don’t miss out! Register today at https://hca-nys.org/wp-content/uploads/2019/09/HCA-PDGM-Bootcampwith-Barb-Katz-Registration-Form-10-23-19-2.pdf.

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PDGM from p. 1 In short, this proposed legislation “would require that the need for cuts be validated by data tracking of actual program experience and with methodology, and that cuts be directed at providers whose practices warrant it, rather than embedding the presumptions that cuts are warranted prior to services being provided,” Cardillo says in his letter to Congress.

Making “matters worse,” he adds, the U.S. Centers for Medicare and Medicaid Services (CMS) has proposed a rule to further deepen the billion-dollar cuts “by approximately 30 percent, making the need for fall passage of H.R. 2573 all the more urgent.”

We ask all HCA members, again, to continue advocating directly on this bill with your elected representatives in Congress. You can do so through our Legislative Action Center, for use by all of your key staff (at a minimum), along with your personal commitment to make phone calls to Congressional offices urging support and passage of H.R. 2573 and its companion bill (S.433).

At last count, you and your colleagues sent over 700 messages on this bill using our online platform. Can we count on you to push this well over 1,000? Please act today. It takes less than a minute of your time at https://p2a.co/74mBIkL. To help you with your phone calls and other outreach to Congress, please check out HCA’s grassroots advocacy toolkit which is a great reference for messaging and logistical tips (https://hca-nys.org/wpcontent/uploads/2019/07/Advocacy-Toolkit.pdf).

On a related note, HCA is preparing our comments to CMS on its proposed rule for the 2020 Home Health Prospective Payment System, which advances the PDGM model, and will share these comments with members once finalized, so please stay tuned. The PDGM cuts and other aspects of the model were also a focus subject of HCA’s Senior Financial Managers Retreat last week as we continue to provide important education to members on the intricacies of PDGM, going into effect in fewer than four months.

Please also see our related story about a new installment of HCA’s PDGM Bootcamp for Clinical Managers and Quality Staff (October 23 in Fairport), following a popular session downstate earlier this year.

Lastly, HCA’s Executive Vice President for Clinical and Program Affairs Rebecca Fuller Gray and Lauren Ford, HCA’s Director of Program Research, Development and Policy, are headed to Washington this week for further work with the Council of State Home Care Associations and to conduct legislative visits on this bill and other federal priorities.

2018 LHCSA Statistical Reports Posted Includes registration process, which is required to continue operating as a LHCSA 2018 statistical reports for LHCSAs and Assisted Living Program (ALP) LHCSAs are now posted on the Health Commerce System (HCS).

One or both of these reports is required of all LHCSAs, along with the accompanying LHCSA registration process that the state first implemented for the 2017 reporting period. These are all due November 16, 2019.

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Continued from previous page Remember, LHCSAs who do not register by January 1, 2020, through this statistical report process, will not be allowed to operate, provide services or receive reimbursement from any source and are exposed to fines.

The HCS has a Dear Administrator Letter outlining changes to the report from prior years, technical software instructions, Frequently Asked Questions (FAQs) and other information for downloading, opening, entering data, validating, finalizing and uploading the report. To find these instructions, click on “my content”; “documents by group”; “view all document groups”; long term care; training; home care; and LHCSA statistical report.

Importantly, if you downloaded the software last year, you must uninstall the old software and install the new software. (See the HCS instructions for doing so.)

LHCSAs serving the Assisted Living Program have a separate report. ALP LHCSAs that exclusively serve ALP patients will not need to enter information on the 2018 LHCSA Statistical Report but will need to complete and submit the 2018 ALP LHCSA Statistical Report.

However, ALP LHCSAs that also serve the community must submit the LHCSA statistical report regarding the patients in the community and, separately, the ALP LHCSA statistical report regarding their patients in the Assisted Living Program.

LHCSAs that are exclusively Fiscal Intermediaries must complete the LHCSA statistical report.

Questions can go to HCStatRpts@health.ny.gov. We ask that you please cc Andrew Koski at akoski@hcanys.org with any inquiries sent to the Department so that we can track questions or concerns from the field and further assist or facilitate answers.

CHHA Peds, Hospice Residential Rates Posted In succession late last week, the state Department of Health (DOH) announced Medicaid rates and related guidance for non-hospital-based Certified Home Health Agency (CHHA) pediatric services and hospice residence rates. The payments for both rate categories will be made in cycle 2195, check release date of October 2, 2019.

CHHA rates The CHHA rates – for pediatric cases, which are exempt from the Medicaid episodic payment system (EPS) – include an adjustment to factor for minimum wage increases as well as funds for recruitment and retention, recruitment training and retention, and wage parity, where applicable (see Attachment A). The rates are effective retroactive to January 1, 2019.

As a reminder, these CHHA fee-for-service rates are for patients under 18 years of age, and for patients served by a pilot program which provides services to a special needs population of medically complex and

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fragile children, adolescents and young disabled adults. All other CHHA services are reimbursed on the basis of 60-day episodes of care (i.e. CHHA EPS).

The appeals process and other information are in the DAL at https://tinyurl.com/y23jv3et.

Hospice rates The hospice rates include a ten-percent increase authorized annually under the state budget from 2018, along with a recruitment, training and retention add-on ($9.92). The rates, also effective retroactive to January 1, 2019, are based on 94 percent of the weighted calendar year Medicaid rate of the nursing facility in the applicable Wage Equalization Factor (WEF) region.

HCA has posted to our website an Excel file with the rate sheets for Hospice Residence Rate Code 3990 at https://hca-nys.org/wp-content/uploads/2019/09/2019_residence_rates.xlsx. You can also see these online at https://www.health.ny.gov/facilities/long_term_care/reimbursement/hospice/2019_residence_rates.htm.

HCA Submits Comments on FI Workgroup Recommendations On August 27, HCA commented on suggestions made at meetings of the Fiscal Intermediary (FI) Workgroup regarding best-practices and selection criteria.

Our letter and the meeting materials that the letter references are here: https://tinyurl.com/y25vuxdk and https://tinyurl.com/y4855f8o.

The HCA comment letter was among other activities on FI issues that HCA has notified members about in recent days, including: new guidance for Medicaid fee-for-service consumer-directed cases; updated Frequently Asked Questions; and a pending lawsuit targeting the transition to a per-member-per-month (PMPM) reimbursement structure for FI administrative services. (See separate p. 7 article.)

As covered in numerous editions of the Situation Report, HCA was a participant of the state’s FI Workgroup whose purpose was to: 

Identify and develop best practices for FIs;

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Formulate criteria for DOH’s selection and contracting with entities to deliver FI services;

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Develop quality reporting requirements; and

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Establish transition plans for consumers that need to switch to another FI.

The Workgroup met four times. While the Workgroup’s mission did not include the recent PMPM reimbursement change, this critical reimbursement issue permeated every meeting and also was addressed in two letters we sent to the state Department of Health (DOH).

Our August 27 letter emphasizes that the current administrative responsibilities of FIs should not be expanded and that any such expansion would most likely necessitate an increase in the amount paid to the Managed Long Term Care (MLTC) plan and the FI for increased administrative expenses related to the

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expanded responsibilities. We also reiterate our concerns about DOH’s PMPM implementation and its effect on both FIs and plans.

The rest of the letter relates to slides from the August 7 workgroup meeting which provides feedback on FI selection criteria and potential best-practices including such factors as: local or regional presence; experience; compliance and oversight structure; FI visits to the consumer; training and recruitment of personal assistants (PAs); training of consumers; assisting PAs with meeting health status requirements; outreach and education; establishment of a consumer advisory board; and more.

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

New FI Reimbursement Guidance Released On August 30, the state Department of Health (DOH) issued another new notice in its roll out of major reimbursement changes for Fiscal Intermediaries (FIs) who are providing administrative services under the Consumer Directed Personal Assistance Program (CDPAP).

This latest guidance (see https://hca-nys.org/wp-content/uploads/2019/09/FI-BillingGuidance_LDSS_083019.pdf) is for services provided under local Departments of Social Services (LDSSs) in Medicaid fee-for-service (FFS). Similar to a July 1 guidance for FI services under managed care (https:// www.health.ny.gov/health_care/medicaid/redesign/mrt90/mltc_policy/19-01.htm), the letter mentions a three-tier per-member-per-month (PMPM) rate structure for reimbursement of the administrative services component for CDPAP. Effective September 1, DOH is removing the administrative component for CDPAP rates, and LDSSs will pay a separate PMPM. In addition, “the provider-specific direct-care medical services component of the rate will be modified to remove the FI administrative costs with the changes above,” the letter states.

HCA members should also note that the CDPAP administrative claim will require prior approval/authorization

by LDSSs. FIs will bill a separate rate code for each approved/authorized consumer for each month the FI is providing service to that consumer based on the number of direct-care hours authorized by the LDSS. This guidance follows an updated Frequently Asked Questions (FAQs) that was posted on August 29 at https://www.health.ny.gov/health_care/medicaid/redesign/mrt90/mltc_policy/faqs.htm.

These FAQs provide helpful information about the right of consumers to switch managed care plans if their FI closes (or stops contracting with a managed care plan), along with the transfer of health records, authorizations and assessments when a consumer is transferring from one FI to another. However, the FAQs do not address the most immediate, major issue of concern facing FIs and plans – namely, the change in reimbursement for administrative services to a PMPM payment.

HCA has repeatedly asked DOH for clarification on the implementation of the administrative PMPM change.

Such clarification is all the more important now as plans are sending out contract amendments to FIs. We understand that such guidance is forthcoming.

As extensively reported, these rate changes are the subject of a lawsuit for which arguments will be heard on September 17. Plaintiffs sought a preliminary injunction on the rate cuts, or a “stop,” while the court further

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considers the matter, but the judge stopped short of granting the injunction, which is why the rates are going forward as scheduled.

In a recent article for Home Health Care News (https://homehealthcarenews.com/2019/08/regulatorychanges-threaten-to-compound-caregiver-crisis/), HCA raised concerns about the unsustainability of these rate changes for FIs, plans and consumers alike, particularly at a time when the state is otherwise moving to advance new requirements and responsibilities for FIs. HCA has argued for a further delay or “grace period” in the rates 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 absent changes in the rates for plans and FIs to appropriately cover these costs – a position we’ve stated in a recent letter to State Medicaid Director Donna Frescatore (https://hca-nys.org/wp-content/uploads/2019/08/HCA-FI-Workgroup-PMPMRecommendations.pdf).

Questions regarding changes to FI services can be directed to DOH at ConsumerDirected@health.ny.gov.

HCA Releases New Data on Sepsis Screening Cost- and Hospitalization-Avoidance Opportunity for Sepsis Month For sepsis awareness month, HCA has presented some exciting new data making the case for a vigorous home care response to the sepsis crisis. This data is buoyed by some new cost-savings illustrations, also prepared by HCA, using the example of one home care agency that has so far detected 476 cases of sepsis using HCA’s “Stop Sepsis at Home” screening protocols and tool.

To help us spread the word about these important findings, please share our data charts and press release, all of which can be found on our main website and on HCA’s various social media channels.

Medicare data for New York reveals over 8,500 annual hospital cases for sepsis that involve patients for whom home care screening could have had a direct impact (i.e., hospitalizations that

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coincided with a span of home care services).

Based on New York’s average per-case Medicare fee-for-service cost of sepsis-related hospital care ($23,050), these hospital cases cost Medicare approximately $196 million a year, not counting other nonMedicare payor sources, which is a significant opportunity area for in-home interventions to stem these costs through early detection and prevention using the HCA sepsis screening tool. (See chart on p. 8.)

Case Example: Millions of Dollars in Cost Savings Potential for One Agency Alone

As a case example, one agency utilizing HCA’s tool has so far identified 218 cases meeting sepsis criteria that led to intervention at home (by the home care agency and/or collaborating physicians). Another 258 of this agency’s cases met the criteria for “severe sepsis,” leading to anticipated interventions with physicians and EMS/hospital partners, thus totaling 476 total cases meeting the criteria for sepsis and severe sepsis detected through the HCA tool.

To illustrate the cost-savings impact, HCA has modeled some scenarios that conservatively suggest the potential for as much as $9.2 million in cost savings attributable to these screenings.

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Continued from previous page This illustration uses the average of the median cost of sepsis care in New York State hospitals and applies a set of assumptions for the 476 cases whereby: 1) hospitalizations were averted in some cases; and 2) hospitalization occurred but for a shorter length of stay due to early detection through the screening tool.

Today, nearly all 62 counties in New York State are served by a home care agency trained and authorized to use the sepsis tool, with total potential caseloads exceeding 330,000 patients to date – and growing. In fact, providers and systems in other states have already begun using the HCA tool in collaboration with HCA. The U.S. Centers for Medicare and Medicaid Services (CMS) also recently featured the tool, HCA’s preliminary outcomes data, and HCA’s work to a national “provider partners” audience. The tool was chosen for use in a special CMS project under the direction of IPRO, training over 10,300 clinicians in early sepsis recognition. The program is also receiving a Sepsis Heroes award from Sepsis Alliance during a gala coming up on September 12 to coincide with Sepsis Awareness Month.

Please follow our Facebook, Twitter and LinkedIn pages for further updates and resources from HCA and our “Stop Sepsis at Home” project partners on sepsis prevention, detection, clinical best-practices and patient care profiles.

HCA, Colleagues Offer Recommendations for NYS Medicaid MegaWaiver It’s a big policy development, and it’s now consuming major focus, planning and attention from state policymakers and stakeholders.

New York State health officials are working to renew the state’s multi-billion-dollar 1115 Medicaid waiver in an application to federal officials at the U.S. Centers for Medicare and Medicaid Services (CMS).

To offer assistance in this effort, HCA and six other state health care associations joined together

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on core recommendations and key amendments for consideration as part of this sprawling waiver being eyed for renewal.

The groups’ recommendations are presented in a comprehensive letter sent recently to the state’s Deputy Secretary for Health and Human Services. (See here: https://hca-nys.org/wp-content/uploads/ 2019/08/Joint-Letter-1115-Waiver.pdf).

Section 1115 of the Social Security Act gives the U.S. Secretary of Health and Human Services the authority to approve experimental, pilot, or demonstration projects that promote the objectives of Medicaid and the Children’s Health Insurance Program (CHIP). New York State has used this section of law as the basis for its Medicaid Redesign Team (MRT) initiatives through a waiver that fundamentally reshaped the health care system in New York State. For home care, specifically, this waiver is the driving force for major shifts in funding and care-management, including the nearuniversal transition of Medicaid home care cases (and other sectors) into managed long term care. The waiver also includes many other elements of broad sweep for the entire Medicaid program, touching every sector.

Among the important themes of our letter — from which specific policy ideas also flow — is the need to reorient the funding and policy structure when it comes to the state’s intended involvement of pre-acute, long-term, post-acute and behavioral health providers, including home care and hospice.

For these providers, the current 1115 waiver construct (as already approved by CMS) has caused funding imbalances which exacerbate the discrepancies apparent in other health care transformation or investment programs that have overlooked community care. One such example is the state-negotiated charitable health fund leveraged from the for-profit conversion of Fidelis Health Care in its acquisition by Centene. These dollars have almost exclusively flowed to institutional providers, as have 1115 Waiver funds.

Funding imbalances are among many factors that have aggravated a well-documented workforce shortage plaguing community provider systems throughout New York State. HCA has reported regularly on the vacancies and recruitment-retention challenges that limit access to cost-effective home care.

While all health care settings struggle with this dynamic, community care providers must compete with larger health care systems for the same nursing and other staff — yet without equivalent, proportionate or commensurate infrastructure funding, nor the same degree of administrative authority or discretion to innovate and be lead entities influencing system change.

The 1115 waiver renewal can remedy this.

As we note in our multi-association letter, community care providers are “constantly framed under the [existing] waiver as ‘downstreams’ of other, ostensibly controlling entities, rather than as the primary, preventive and priority-first layers of the system” — whether financially, in the fund flows, or administratively in terms of which sectors are empowered to drive decision-making.

A longtime funding void has also hindered community providers as they seek to invest in health information technology connectivity that is critical to meeting the imperative presented to home care, hospice and other providers as part of the very fabric of the 1115 waiver itself. Such imperatives include

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a reduction in avoidable hospital use under the waiver’s Delivery System Reform Incentive Payment (DSRIP) program and related initiatives like value-based payments (VBP). These programs seek to reduce unnecessary hospitalizations by 25 percent, which is a calculus that fundamentally must involve community care providers at its very heart, as pre- and post-acute home care prevents unnecessary ER use, readmissions, and other cost burdens.

DSRIP, as conceived to date, is an illustration of the inverted role imagined for home care, hospice and community care in the current waiver. This construct involves a “top-down,” institution-oriented structure, we write in our letter, not only for the flow of billions in funding through the 1115 waiver but also in administration and decision-making about how best to deliver care and improve outcomes.

As currently structured, these programs have also created incentives — both funding and authority-related — that result in existing community resources getting overlooked in the delivery of services at the very core of providers’ longstanding jurisdictional authority. This “duplication, overlap, conflict/confusion and scofflaw risk” needs to be addressed in the form of waiver amendments that create a more “bilateral” structure.

Such a bilateral structure will ensure home care input into service designs and protect patients, in line with the historical intent of existing jurisdictional lines like Article 36 (the governing regulations for home care in New York State). It will also avoid the kinds of patient-care safety, quality and professional expertise gaps that may arise when other disciplines seek to overstep in providing community care, in cases where this activity falls squarely outside of rightly established jurisdictional lines.

In short, home care providers are licensed, experienced and structured to provide care in the home.

Duplicating these services in other settings is not only unnecessary and conflicting but it puts patient care at risk because providers in Article 36 are held to compliance regulations, special requirements for nursing assessments, community-care-specific emergency preparedness regulations, Medicare Conditions of Participation (or equivalent state versions of federal regulation), and a whole range of critical controls that are the very purpose of Article 36 and other jurisdictional requirements to begin with.

HCA and collaborating associations are working on next steps (including meetings with the Administration) for advocating these changes in any renewal of the waiver, DSRIP and related programs.

LawTalk: NY Expands Human Rights Law to Protect Domestic Violence Victims, Including New Employer Provisions

By Frank Fanshawe, Esq. and Ashley Solowan, Esq. On August 20, 2019, Governor Andrew Cuomo signed into law a bill that amends the New York State Human Rights law to protect domestic violence victims from employment discrimination.

The new law also requires home care agencies, hospices, MLTCs, and all other employers to provide reasonable accommodations to these employees who are at an increased risk of instability in the workplace. The new law will go into effect on November 18, 2019.

A “victim of domestic violence” is defined as any person who is older than 16, married, or a parent accompanied by the parent’s minor child in a situation where the person or minor child is the victim of an act committed by a family or household member that would violate the penal law. The new law protects

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Continued from previous page victims of domestic violence who have suffered actual physical or emotional injury, or where there was a substantial risk of physical or emotional harm to the person or the child.

Going forward, it will be unlawful for any employer, including home care agencies, hospices, MLTCs, and others, to: 

Refuse to hire or employ individuals because they are a victim of domestic violence;

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Terminate individuals because they are a victim of domestic violence;

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Discriminate with respect to compensation or the terms, conditions, or privileges of employment for someone who is a victim of domestic violence;

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Print or circulate a statement, advertisement, or publication that expresses any limitation, specification, or discrimination about someone’s status as a victim of domestic violence; or

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Use an employment application or make an employment inquiry that expresses any limitation, specification, or discrimination about someone’s status as a victim of domestic violence.

Employers such as home care agencies, hospices and MLTCs will also be required to provide reasonable accommodations to known domestic violence victims, provided the employee gives reasonable advance notice to the employer, if possible, unless such an accommodation would create an “undue hardship” for the employer. If an employee does not provide advance notice to his or her employer, the employee must provide a certification of need for an accommodation if requested by the employer.

These accommodations include, but are not limited to, absence from work for a reasonable time for medical attention, psychological counseling, legal services, and living accommodations. The employer may count this time against any paid time off to which the employee is entitled. If the employee has no available paid time off, the time off may be treated as unpaid.

Home care agencies, hospices and MLTCs should be aware and consider state, federal, and local leave laws when determining the appropriate course of action for deciding about a reasonable accommodation. Agencies, hospices, and MLTCs should consult with their legal counsel with any questions about this new law.

LawTalk is a series of articles written monthly by HCA’s counsel at Jackson Lewis, P.C. Please note that these articles are for general, informational purposes, are not legal “advice,” and do not create an attorney-client relationship. Because each case is unique, the information provided should be considered to be general in nature, and should never be considered a substitution for legal counsel. Readers should not take, or refrain from taking, any action based on information in this article without first seeking legal advice from competent counsel.

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2019 Guide Ranks Health Insurers The state Department of Financial Services (DFS) has released the 2019 edition of the New York Consumer Guide to Health Insurers.

The guide is at https://www.dfs.ny.gov/consumers/health_insurance/guide_2019.

The New York Consumer Guide to Health Insurers ranks insurers by complaints, internal and external appeals, grievances, and dispute resolution, as well as by quality of care in various categories such as child and adolescent health, women’s health, adult health and behavioral health.

It also includes information on health insurers’ accreditation, and resources such as contact information for insurers, how to make a complaint and how to apply for health insurance offered on New York’s health insurance marketplace.

NYS Health Foundation Issues RFP The New York State Health Foundation (NYSHealth) 2020 Special Projects Fund Request for Proposals (RFP) is now available. Applicants must submit an online inquiry form to determine whether a proposed project fits the funding criteria.

There are two funding cycles. Deadlines for the online inquiry form are October 3, 2019 and March 4, 2020. Selected organizations will be invited to submit full proposals, with deadlines of December 2, 2019 and May 11, 2020.

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

Details on the RFP are at https://tinyurl.com/yy6s2dkv.

DOH Proposes Revisions to Executive Comp Rule On September 4, the state Department of Health (DOH) posted a proposed rule to revise the regulations related to Executive Order No. 38, which sets limits on executive compensation and administrative costs for providers receiving state funds or state-authorized payments.

The proposed rule is at https://regs.health.ny.gov/sites/default/files/proposed-regulations/ Limits%20on%20Executive%20Compensation.pdf.

This action is being taken to comply with the state Court of Appeals decision in LeadingAge, et al. v. Shah, et al, which invalidated a portion of the existing regulations concerning limits on executive compensation.

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It follows similar proposed rules for the Office for People with Developmental Disabilities and the state Office for Aging.

On October 18, 2018, the Court of Appeals issued an opinion upholding the so-called “hard cap” and administrative expense cap, while striking down the “soft cap.” The “soft cap” prohibited executive compensation in excess of $199,000 from all sources of revenue unless the compensation in question is within the 75th percentile of comparable providers and has been approved by the provider’s governing board, including at least two independent directors or voting members.

The regulations proposed on September 4 implement changes in regulatory procedures in order to align with this court decision, finding the “soft cap” regulations invalid while continuing to implement other applicable provisions of EO No. 38.

More information on EO No. 38 is at https://executiveorder38.ny.gov/.

CMS Issues New and Revised Instructions for PDGM Billing The U.S. Centers for Medicare and Medicaid Services (CMS) recently released Transmittal No. 4378 with revised and additional manual instructions related to the home health Patient Driven Groupings Model (PDGM). See https://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/2019Downloads/ R4378CP.pdf.

This transmittal revises sections of the CMS Claims Processing Manual, Chapter 10, to support PDGM implementation. It also creates new sections to describe the PDGM program.

New Chapter 10 Section 10.1.23 A new Section 10.1.23 (“Changes in a Beneficiary’s Payment Source”) addresses payment source changes involving Medicare Advantage (MA) and fee-for-service as well as changes involving coordination with Medicaid. The changes largely address conditions that would trigger a new OASIS start-of-care assessment in the transition from MA to fee-for-service, along with instructions on the applicable Request for Anticipated Payment (RAP) dates. The changes also address proportional payments when part of a beneficiary’s episode of care moves from Medicare fee-for-service to MA. Providers should also read the instructions related to dual-eligible beneficiaries, including the use of patient status code “06” for discharge when a patient no longer meets coverage requirements for Medicare.

New Chapter 10 Sections 80.1 and 80.2 This new section deals with the Home Health (HH) Grouper program used to determine the Home Health Resource Group (HHRG) for payment purposes. It outlines the required data and format for the HH Grouper input/output record for periods of care beginning on or after January 1, 2020. It also reflects the possibility that CMS may need to make updates “on January 1 if changes to the payment system require it,” with applicable notice in the Federal Register.

Continued on next page

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Continued from previous page The HH Grouper is a module within Medicare claims processing systems. After a home health agency sends a HIPPS code on its claim (using revenue code 0023), the Medicare systems combine claim data and OASIS data and send the data to the HH Grouper to determine the HIPPS code used for payment.

Medicare claims processing systems must send an input record to the Grouper for all claims and most adjustments. RAPs and medical review or other program integrity contractor adjustments are not sent to the Grouper. The Grouper will return an output record to the shared systems whenever an input record is sent.

No part of the Grouper logic is required to be incorporated into a home health agency’s billing system in order to bill Medicare, unless the agency chooses to do so to assist its accounts receivable functions.

Earlier this year, CMS issued Transmittal No. 4294, also related to billing under PDGM, which can be downloaded at: https://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/ 2019Downloads/R4312CP.pdf.

Health Care Resources

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“Long-Term Services and Supports,” by the AARP Public Policy Institute https://www.aarp.org/content/dam/aarp/ppi/2019/08/long-term-services-andsupports.doi.10.26419-2Fppi.00079.001.pdf

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“The Facts on Medicare Spending and Financing,” by Kaiser Family Foundation http://files.kff.org/attachment/Issue-Brief-Facts-on-Medicaid-Spending-and-Financing

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“Influenza Vaccine Payment Allowances: Annual Update for 2019-2020 Season,” by the U.S. Centers for Medicare and Medicaid Services https://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/2019-TransmittalsItems/R4382CP.html?DLPage=1&DLEntries=10&DLSort=1&DLSortDir=descending