September 17, 2018 Edition of The Situation Report by Home Care Association of New York State

UPDATED LHCSA FAQs

SEPSIS

COMPLIANCE

MANAGED CARE UPDATES

DOH has updated FAQs with important technical, procedural clarifications for completing LHCSA Statistical Report due Nov. 16.

Sepsis Awareness month highlights the importance of T.I.M.E. in identifying and acting on deadly condition. Join us for Oct. 3 summit!

HCA-HPCANYS compliance conference to feature session on NGS audits and what to expect, including specifics on the targeted probe-andeducate initiative.

Latest meeting of DOH and managed care plans/ stakeholders covers wide range of issues, from LHCSA-MLTC contract limits to rates, minimum wage, CFCO and more.

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Your Source for HOME CARE News, Policy and Advocacy

UPCOMING PROGRAMS 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

Vol. 3, Issue 36 | September 17, 2018

Council of State Home Care & Hospice Associations Convenes in National Policy Summit The Council of State Home Care and Hospice Associations met on September 11 and 12 in Washington for a health policy summit on critical issues and advocacy for home care. HCA Interim President Al Cardillo represented HCA. The summit brought together representatives from associations across the country for discussions that included federal home care and hospice reimbursement, program integrity See SUMMIT p. 2

HCA to Submit Amicus Brief on Andryeyeva 24-Hour/Live-in Case HCA is submitting an amicus brief with LeadingAge New York to the Court of Appeals, New York’s highest court, in the Andryeyeva case. The brief is expected to be filed later today. The outcome of this case has enormous implications for home care agencies and patients as it is an appeal of an earlier decision whereby the Second Department, Appellate Division See AMICUS p. 3

INSIDE Council of Associations Convenes in National Policy Summit............................1 HCA to Submit Amicus Brief on Andryeyeva Case...............................................1 New LHCSA Statistical Report FAQs....................................................................2 A Message from HCA Sponsor RBC Limited.........................................................3 HCA Advocacy Meetings Widen in Span.............................................................4 HCA, Coalition Appeal to Governor on New Health Fund....................................5 Memo Highlights Changes in Final CoP Interpretive Guidelines..........................6 Join HCA’s 9/27 Emergency Prep Program Supporting Home Care, Hospice..........6 DOH Announces Important 9/28 Webinar on MLTC Minimum Wage Issues..........7 Sepsis: “No Time To Waste”!.............................................................................8 Register NOW for the October All Sector/All Partner Sepsis Summit!...................8

What You Need to Know about NGS Audits at 10/17 Compliance Program......9 Oral Arguments Heard on EO No. 38 Appeal by Associations..........................9 Critical Updates from DOH-Managed Care Meeting....................................10 Webcast Available for CMS-led HHQRP Training on November 6 & 7..............11 CMS Issues Transmittal on Quality Reporting Reconsideration Requests........12 DOL Issues Updated FMLA Forms................................................................12 Upcoming Deadlines and Due Dates..........................................................13 Hospice and ALP Minimum Wage Survey Due September 21........................14 Hospice Manual Includes Payment, Attending PA Designation Updates......14 eMedNY Provider Training Opportunities Still Available..............................14 Health Resources.....................................................................................15

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SUMMIT from p. 1 developments, trends in long term services and supports, new model designs and opportunities for home care and hospice, federal policy advocacy strategies, an extensive exchange with Medicare Administrative Contractors (MACs) on a host of issues, and more. The discussion queued up and offered a forum for coordination among state associations on a major federal advocacy push targeting the finance, program and regulatory (especially regulatory relief) needs of the system. This advocacy is essential at both the association level and in outreach to New York’s Congressional Delegation. It is also critical with the U.S. Centers for Medicare and Medicaid Services (CMS) and the MACs, and at the grassroots level, through provider and plan-level meetings locally with House and Senate members. Your federal and state legislators, especially their district offices, should all know who you are, what services you provide to their constituents, and what role and value you provide to your community. With much at stake in the upcoming midterm elections, it is vital that the important messages for home care and hospice are effectively presented, and that support is secured for the system. HCA will be providing further updates on federal developments, and will additionally be convening with both multistate and national colleagues at the October meeting of the National Association for Home Care and Hospice and Forum of State Associations. HCA and advocacy from members and all supporters will be ever critical in the upcoming period, and in the lead-up to the new legislative and congressional sessions.

New LHCSA Statistical Report FAQs On Friday, the state Department of Health issued an updated Frequently Asked Questions (FAQs) document for LHCSAs to consult when completing the new 2017 Statistical Report process. The new FAQs are here: https://hca-nys.org/wp-content/uploads/2018/09/ ctrlaccihanstmpNotification100164.pdf. The 2017 Statistical Report must be completed by November 16. As HCA has repeatedly stressed, the report includes a new registration process that must be completed or else LHCSAs could face a series of sanctions, from fines to revocation of their licenses. See last week’s edition of The Situation Report for further details. 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

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 Acting President acardillo@hcanys.org Roger L. Noyes Director of Communications, Editor of The Situation Report rnoyes@hcanys.org Patrick Conole Vice President, Finance & Management pconole@hcanys.org Andrew Koski Vice President, Program, Policy & Services akoski@hcanys.org Laura Constable Senior Director, Membership & Operations lconstable@hcanys.org Celisia Street Director of Education cstreet@hcanys.org Mercedes Teague Finance Manager mteague@hcanys.org Jenny Kerbein Director of Governance & Graphic Design jkerbein@hcanys.org Billi Wilson Manager, Meetings & Events bwilson@hcanys.org Teresa Brown Administrative Assistant tbrown@hcanys.org

The Situation Report: the Home Care Association of New York State AMICUS from p. 1 ruled that the state Department of Labor’s (DOL) opinion letter setting forth the “13-hour rule” for 24hour/live-in cases is inconsistent with the plain language of the underlying regulation. DOL has since codified the 13-hour standard in an emergency rulemaking process urged by HCA and other organizations. The emergency rule, still in effect, has been extended several times since last October. According to the court, DOL’s regulations require payment of at least the minimum wage for all 24 hours of a live-in shift for aides who are not “residential” employees. (“Residential” is defined as those aides who live on the premises of their employer and who are “required to be available for work.”) The 13-hour standard, by contrast, exempts up to eight hours of sleep, five of which must be uninterrupted, and three hours for meals. In the draft amicus, we conclude with: The financial impact of an affirmance (of the lower Appellate Court’s decision) would be catastrophic. Providers would be forced to shoulder the financial burden of paying home health care attendants for all 24 hours worked in a 24-hour shift and related overtime costs, with no assistance from the State, unless increased staffing

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was medically justified. Accordingly, an affirmance would put the home health care industry in jeopardy of collapsing, and limit the ability of Medicaid patients to receive services that they need to remain in their homes. HCA advocates continuously and vigorously for reimbursement and policy actions to maximally support our home care personnel, especially compensation, benefits and other occupational supports for home health aides and personal care aides who provide the bulk of patient care hours. Reimbursement must be aligned with worker and community needs, and specifically also with state and federal labor laws and rules. The current ligation would break the alignment, creating unachievable cost obligations without aligning the reimbursement, and thus threatening the entire system for the patients, the workers and the providers. HCA has worked extensively to support the “13hour rule” for 24-hour/live-in cases, including: advocating for DOL and state Department of Health (DOH) guidance and support; submitting comments on DOL’s emergency rule that codifies DOL’s interpretation that hours worked under the minimum wage law do not include

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certain uninterrupted meal periods and sleep time of aides who work shifts of 24 hours or more; testifying in support of DOL’s emergency rule at a hearing in July of this year; submitting other amicus briefs on important court cases that challenged the 13-hour standard; and holding member briefings and education programs on this vital provider and patient issue. HCA will inform members once the Court of Appeals makes a decision.

HCA Advocacy Meetings Widen in Span HCA met this past week with the Senate and Assembly Health Committee directors and with the office of a prominent fellow Assembly health leader on a full slate of home care, managed long term care plan (MLTC) and hospice items. The meetings built on the prior week’s advocacy with principal health members of the Senate and Assembly Majority leadership staffs, and with the State Medicaid Director Donna Frescatore and her top team. Discussions this past week – led by HCA Interim President Al Cardillo and Caron O’Brien Crummey from HCA’s legislative-affairs firm Hinman-Straub – included the offices of Senate Health Chairman Kemp Hannon, Assembly Health Chairman Richard Gottfried, and Assembly Caucus member and health advocate Assemblywoman Crystal Peoples-Stokes. HCA is presenting both houses and the Executive with comprehensive messaging about home care, MLTC and hospice, underscoring the status and needs of the industry amid a cascade of state budget and regulatory actions being applied to the system. HCA is likewise highlighting areas where, through proper framing and state support, providers and health plans can create new beneficial opportunities for the health system and the state’s residents. Among the key immediate and impending impacts that we are discussing are: the fast-approaching October 1 MLTC-LHCSA contract limit deadline and the transitions and dislocation these limits will trigger; the state’s rate cuts and methodology rebasing applied to MLTCs; the simultaneous move to Phase 2 MLTC-home care value based payment contracts; rate adjustments for minimum wage increases and corresponding contract amendments; the new registration requirement for licensed agencies; incorporation of the Community First Choice Option into MLTC and PACE; the LHCSA moratorium; and other state actions. The changes are multilayered, and HCA is stressing to state leaders the need for consideration of the combined effect and implications caused by these actions, as well as plans’ and providers’ ability to simultaneously execute them or respond operationally. We’ve stressed that, all told, these actions have led to an unstable market and fiscal fragility. This is clearly evident in the Medicaid cost report data, GuildNet’s announced plans to close, instances of other imperiled or withdrawing health plans, and the implications of these trends on existing plans, providers, workers and patients. HCA continues to emphasize the need for state officials to relook at and refine their actions, expectations and support levels, and to ensure that providers, plans and patients are not the victims of severe financial liabilities. Continued on next page

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Continued from previous page In a counterbalance to this reactive discussion on state policy trends and implications, HCA also reviewed with state officials some of our key, proactive legislative proposals for home care, hospice and MLTCs in the areas of workforce, infrastructure, quality promotion, as well as innovations in public health, primary care and prevention. These are all opportunity areas that would benefit the state’s goals and its citizens if able to flourish among plans and providers. We also discussed each legislative office’s own positive ideas and proposals for the industry. HCA’s next advocacy meetings are soon planned with the Governor’s office, the Division of Budget and state Department of Health. HCA will be holding further discussions directly with the membership on these advocacy and tablesetting items via our upcoming forums and other member venues, including surveys, statewide calls, conferencing and other opportunities. For further information, contact Al Cardillo at acardillo@hcanys.org.

HCA, Coalition of Community Health Providers Appeal to Governor on New Health Fund HCA, working with the New York State Council for Community Behavioral Health and partners (including the Hospice and Palliative Care Association of New York State, the Community Health Care Association of New York State, and an additional coalition of community health providers) have co-signed a letter to Governor Cuomo reinforcing the importance of funding for community providers in the distribution of the new special health fund created from the transition of Fidelis Health Plan into the Centene corporation. The special health fund was established in the 2018-19 state budget agreement. It provides for monies projected from the transition of Fidelis to be divided between charitable funds allocated to the state, and charitable funds allocated to the Catholic Church (the sponsor of Fidelis) for community purposes. The budget’s guiding language for the charitable fund addresses broad purposes for primary, preventive, inpatient, and other services. As the Governor considers how to invest these resources, our September 14 appeal to Governor Cuomo asks that he ensure the availability of investments across all health care settings to include community-based settings, with a focus, especially, on workforce needs. The letter stresses that “the community-based health and human service sector is suffocating under the weight of a persistent workforce crisis that profoundly limits the very same programs and services the state relies on each day to provide essential healthcare as alternatives to costly acute care.” We urge the Governor “to remember the community-based healthcare and behavioral healthcare sectors as you consider how to obtain the greatest return on investment from the funds from the Fidelis sale. A

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thriving and appropriately resourced community-based sector is critical to achieving delivery system reform.” Following the letter, the associations will meet with the Administration to reinforce the needs of the community health sector and our funding message. These funds would indeed be crucial to assisting home care and hospice agencies, especially given the limitations of funding through the state’s general fund, Medicaid rates or other general budget sources. These funds are a precious opportunity to lift and help remedy the inequity and need for correction in funding for community care, particularly in the urgent area of workforce support and relief. For further information, contact Al Cardillo at acardillo@hcanys.org.

Memo Highlights Changes in Final Medicare Home Health CoP Interpretive Guidelines As mentioned in the September 10 edition of The Situation Report, the U.S. Centers for Medicare and Medicaid Services (CMS) has released the final home health agency (HHA) Conditions of Participation (CoPs) Interpretive Guidelines which provide surveyors – in New York’s case, the state Department of Health – with clarification and protocols for enforcing the newly expanded CoPs. The Interpretive Guidelines also provide information and guidance for HHA compliance with the CoPs. The final CoP Interpretive Guidelines are at https://www.cms.gov/Medicare/Provider-Enrollment-andCertification/SurveyCertificationGenInfo/Downloads/QSO18-25-HHA.pdf. HCA has conducted a preliminary review of the now-final guidelines which were posted on August 31. We strongly suggest that home care providers read the entire guidelines. However, we have prepared a memo highlighting some specific areas where the final version differs from the draft guidelines as well as other important areas for home care providers. This memo, therefore, should not be regarded as an allencompassing summary of the guidelines, and HCA will provide any updates as needed throughout our continuing analysis and discussions with regulatory officials. To read the memo, click here: https://hca-nys.org/wp-content/uploads/2018/09/Final-Interpretive-GuidelinesComparison-to-Draft-IG-Memo.pdf.

With Storms Florence, Gordon & Must-Do All-Hazard Planning, Join HCA’s 9/27 Emergency Prep Program Supporting Home Care, Hospice Registration deadline is TODAY Hurricane Florence, Tropical Storm Gordon and the September hurricane season are a stark reminder that it is important for home care and hospice providers to maintain an all-hazards emergency preparedness plan for ready implementation. Emergency preparedness requires planning for all possibilities, kinds of disasters and circumstances, including non-weather impacts and events. HCA’s upcoming September 27 conference on emergency preparedness hot-topics is an important opportunity for both preparedness and after-action lessons learned from all forms of disasters that can

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severely affect the continuity of your services, your staffing capacity to meet patients’ needs, and the safety of vulnerable patients at home. These lessons will also help you meet federal Conditions of Participation (CoPs) and other regulatory safeguards intended to bolster your preparedness and response to any hazard affecting your operation. HCA’s September 27 program includes insights from a home care leader whose own agency’s preparedness plan was severely tested by a series of events that led to her organization’s development of a resilient allhazards preparedness plan. 

You will also learn more about how to comply with CoPs and other regulations that are not only intended to support your preparedness but are survey-enforceable compliance mandates.

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In addition, HCA’s policy team, state officials and experts will provide insight on how you can best work seamlessly with local coalitions and other health care emergency preparedness systems to operate from a position of strength in preparation, response and in the aftermath of disasters.

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We’ll also offer you with insights on cybersecurity and the opportunity to test your organization’s overall vulnerability to meet any hazard through a Department of Health-led tabletop exercise that will accrue immediate regulatory compliance benefits to your organization by fulfilling the secondary exercise requirements of the CoPs.

Whether a Medicare-certified agency, a LHCSA or a hospice provider, all entities have shared responsibility to meet the preparedness regulatory and patient safety mandate. Please join us for this annual signature event by registering with the form at https://hca-nys.org/wp-content/uploads/2018/08/HCA-Emergency-Preparedness-Conference-9-27-18-Brochure.pdf.

DOH Announces Important 9/28 Webinar on MLTC Minimum Wage Issues, Adjustments The state Department of Health Office of Health Insurance Programs (OHIP) is holding an important webinar on September 28 at 2 p.m. to discuss MLTC minimum wage adjustments and calculations, with implications for contracting home care providers as well. HCA home care and MLTC members are strongly encouraged to participate. Registration is required for those wishing to participate. See details below. HCA members who attended our September 6 and 7 Senior Financial Managers Retreat may recall that Daniel Carmody, Director of OHIP’s Bureau of Managed Long Term Care Rate Setting, mentioned the upcoming webinar, especially in response to some procedural questions related to the wage calculation methodology and reconciliation process. Click https://tinyurl.com/ybb37y9y to register. On the registration form, enter your information and then click “submit.” Once the host approves your registration, you will receive a confirmation e-mail message with instructions.

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Sepsis: “No Time To Waste”! A national 11-year-old vocalist phenomenon and sepsis survivor sends a message The national Sepsis Alliance’s newly unveiled campaign for sepsis prevention and emergent treatment is “Sepsis: It’s about TIME.” Sepsis Alliance has defined the “TIME” acronym – temperature, infection, mental decline, and extreme illness – in its public awareness effort to help individuals remember signs and symptoms prompting the need for help. See https://www.sepsis.org/sepsis/symptoms/. HCA members are urged to visit this site and use this TIME theme in your work and promotion of sepsis intervention, which is particularly opportune now during September’s Sepsis Awareness Month. During last week’s 7th Annual Sepsis Heroes Gala in New York City (on September 14), 11year-old national vocalist phenom and sepsis survivor Angelica Hale performed her own song “No Time to Waste,” expressing the strength to fight on. She was awarded a national Sepsis Heroes Award. Here is her song, following a short introduction by Sepsis Alliance Executive Director Thomas Heymann: https:// www.youtube.com/watch?v=NrSTdtwMzjU. For home care providers and managed long term care plans, there is no time to waste in joining the effort to address this number-one cause of hospital deaths, costs, readmissions, avoidable Medicaid admissions, and other severe and tragic consequences. Particularly relevant for home care and MLTC, 80 to 90 percent of sepsis-related infections occur in the home and community setting, and the highest risk populations are among those in or within the reach of home care and MLTC. If you are currently a user of the HCA Sepsis Tool, you are changing the game; keep up what you are doing and let your key partners and media sources know. Currently, you are one of the providers covering 55 of New York’s 62 counties where this tool is being actively used. If you are not a user of the HCA Sepsis Tool, write to sepsistool@hcanys.org and ask how you can adopt this tool (all the training, material and support is provided to you by HCA and our core partner IPRO); please also visit our Stop Sepsis At Home NY website for details at http://stopsepsisathomeny.org/. In the next several weeks, HCA is fulfilling requests to present this tool to other states’ hospital associations, hospital summits, and to the Forum of State Home Care Associations.

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Register NOW for the October All Sector/All Partner Sepsis Summit! Sponsored by an unprecedented collaboration of HCA, IPRO, HANYS, Sepsis Alliance, Rory Staunton Foundation for Sepsis Prevention, MSSNY, EMS Association, Blue Cross/Blue Shield, NYSHFA, LANY, NYSOFA, DOH, Regional Hospitals Register today for the first-in-the-country allsector statewide summit on sepsis! A brochure and online registration are here: https://events.eply.com/ AllSectorSepsis Summit2598206. Participate with continuum partners, hear and engage with state and national leaders, and be part of the solution on a top state, national and global health care problem that YOU can help prevent, mitigate and combat to save lives, health and catastrophic costs. There is no time to waste!

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What Home Care, Hospice Need to Know about NGS Audits at 10/17 HCAHPCANYS Compliance Symposium One big reason why HCA and HPCANYS joined forces on our upcoming October 17 compliance program is that so many audit and oversight initiatives are common to both the home care and hospice sectors. While each sector faces increasing scrutiny as a result of specific issues like the new CoPs for home care and the IMPACT Act for hospice, there are many compliance matters affecting home care and hospice, from Medicare Administrative Contractor (MAC) initiatives like face-to-face audits (and targeted probe-andeducate audits) to cybersecurity, to the ongoing work areas of OMIG, OIG and other regulatory agencies. During a breakout session on October 17, Rachel Hold-Weiss, RPA-C, JD, Partner, Arent Fox LLP will cover “What Hospices and Home Care Need to Know about NGS Audits, Including Probe & Educate.” In June 2016, CMS began a demonstration project called Targeted Probe and Educate (TPE) that was eventually expanded to all MAC jurisdictions as a new area of MAC audits. This initiative has departed from the general process of medical record review: Rather than reviewing an individual provider based on that provider’s specific claims denial, or all providers for a particular service, the MACs are selecting providers who have a high claim or payment error rate, unusual billing practices, and will audit providers for items and services that are a financial risk for Medicare or that nationally have a high error rate. Find out how this change in MAC auditing processes impacts your claims cycle, how to respond to TPE notices, strategies, and what your appeal rights are, among other MAC audit and compliance issues. Join us for this important program on October 17, just one month away, by registering and learning more at https://hca-nys.org/events-education/upcoming-events.

Oral Arguments Heard on EO No. 38 Appeal by Associations After last week’s edition of the Situation Report newsletter went to press, HCA obtained and circulated to the membership a memo from our legislative affairs firm, Hinman Straub, about the latest developments in the Court of Appeals case regarding Executive Order (EO) No. 38. The memo is at https://hca-nys.org/wp-content/uploads/2018/09/LeadingAge-EO38-Update-Sept-2018.pdf. As extensively reported, the EO No. 38 regulations limit executive compensation and allowable administrative costs for certain providers that receive state funds or state-authorized payments. On September 5, the state’s Court of Appeals, New York’s highest court, heard oral arguments in the appeal by a group of associations, including HCA, challenging the EO No. 38 regulations. The case is LeadingAge, et al. v. Shah. The Hinman Straub memo summarizes the main arguments and the decisions to date by lower courts which denied the associations’ petitions as they relate to the EO No. 38 regulation’s “hard cap” on compensation. However, the lower courts both agreed that the regulation’s “soft cap” was “promulgated in excess of the

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Department of Health’s authority and, therefore, violated the separation of powers doctrine,” states Hinman Straub in the memo. In essence, this means that the lower court struck down the E.O. No. 38 regulations to the extent they limit executive compensation that is paid from all funds (both state and non-state funds), but the court upheld the regulations insofar as they limit the payment of executive compensation and administrative expenses only from state funds or state authorized payments. A written decision from the Court of Appeals is expected in the next 30 to 60 days. HCA will keep the membership informed of the outcome as well as the implications for other litigation concerning the EO No. 38 regulations.

Critical Updates from DOH Meeting with Managed Care Plans and Stakeholders On September 13, the state Department of Health (DOH) conducted its monthly meeting with managed care organizations, managed long term care plans (MLTC), and associations representing the plans. HCA’s Interim President Al Cardillo participated on behalf of HCA’s MLTC members and their networks. Below are some highlights: 

MLTC Nursing Home Benefit and Enrollment Lock-in: DOH indicated that the state’s proposal for the MLTC nursing home benefit limit, and new “lock-in” period for MLTC enrollees, is submitted to the U.S. Centers for Medicare and Medicaid Services (CMS), with DOH awaiting a CMS response and timetable.

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Social Day Care: DOH is working on guidance for MLTCs implementing the state budget action relating to efficiency in social day care (SDC). DOH indicates that the SDC guidance will not be expressed as mandates.

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LHCSA contracting: DOH was asked if it would be preparing a model letter for MLTC member notification of pending changes in the member’s LHCSA due to the new contract limitation. DOH replied that it felt such a model letter would be “impractical” and that plans could readily incorporate existing statutory explanations into their own letters. Seeking flexibility and assistance with the notice process, plans expressed concern about the logjam that comes with preparing and securing DOH prior approval of notices to members within the constraints of an October 1 effective date for the limits and in concert with a 90-day prior-notice requirement all colliding on the process. DOH indicated that it would be notifying plan reviewers of the timetable challenges and the need for flexibility. HCA has expressed specific concern that member notices, which must be made by the plan, unfairly put the plans and their network providers at risk for drawing negative perceptions from enrollees who may view these actions as “taking their provider away.” On the issue of Independent Practice Associations (IPAs), DOH clarified that while the current guidance does not view IPAs as a single contract representing a number of providers (instead, the guidance views each provider as a separate contract), DOH is still open to discussion about the implications of contract limits on IPAs. There was extensive discussion on the issue of “exceptions” to the contract limit. HCA urged guidance that would give plans further flexibility. DOH stated that Frequently Asked Questions (FAQs) would be

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Continued from previous page posted to help further clarify areas of exception, and HCA suggested that the FAQs provide examples reflecting capability for plan flexibility. DOH noted that “single case agreements” could be included in plan requests for exceptions, but plans expressed concerns with the efficiency of using the provision given the fact that these agreements may be widely needed by plans to ensure continuity and/or special care arrangements. Further discussion is anticipated. 

CFCO: There was extensive discussion and concern regarding incorporation of the Community First Choice Option (CFCO), and especially DOH’s intended January 1 implementation date. Plans raised a wide array of still-unresolved issues and suggested that the January 1 timetable be delayed or suspended until a workable process and guidance could be developed. HCA described the major structural issues still outstanding, with significant state decisions still necessary. HCA also reiterated our proposal to DOH for a consolidated CFCO implementation intended to eliminate many of the burdens under DOH’s current approach. HCA offered to further work with the Department on an alternate, MLTC-accommodating approach. DOH urged continued comments and feedback on the DOH draft guidance to date via the information/input sites posted by DOH. (HCA linked these in last week’s edition of the Situation Report.)

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Minimum Wage: DOH indicated that it has created a minimum wage resource link on its website. DOH recommended that contracts adjusted for minimum wage be executed no later than November 1.

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Home Health Aide Shortage Query: DOH stated that it has been increasingly hearing of home health aide/personal care aide shortages in downstate regions. DOH invited input from plans and associations to provide information and evidence of the shortages and shortage areas downstate. HCA offered to query our member plans and providers and provide feedback to DOH.

The main DOH slides for the meeting are at: https://hca-nys.org/wp-content/uploads/2018/09/09-13-18-MLTC-Policy-Planning-Meeting.pdf. For further information, please contact Al Cardillo at acardillo@hcanys.org.

Webcast Available for CMS-led HHQRP Train-the-trainer on November 6 & 7 in Baltimore The U.S. Centers for Medicare and Medicaid Services (CMS) will be hosting a two-day Home Heath Quality Reporting Program (HHQRP) train-the-trainer event in Baltimore on November 6 and 7 that will be available as a webcast for those unable to attend in-person. The event is open to all home care providers, associations and organizations. To register for either option (in-person or webcast), see here: https://www.eventbrite.com/e/home-healthquality-reporting-program-provider-training-tickets-50119686331. Registration for the in-person event is limited to 250 people, and only those who attend in-person will receive certificates of completion. Those responsible for training home health agency staff will gain information about the HHQRP and associated changes between OASIS-C2 and OASIS-D, which will become effective January 1, 2019. Continued on next page

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Continued from previous page Topics will include: Section J-Health Conditions; Section GG-Functional Abilities and Goals; the Pressure Ulcer/Injury Quality Measure (M1311); and the Drug Regimen Review Quality Measure. Presenters will also discuss reports and other resources available to assist home health agencies in complying with the HHQRP.

CMS Issues Transmittal on HHA Quality Reporting Reconsideration Requests Requests to be Submitted Electronically The U.S. Centers for Medicare and Medicaid Services (CMS) recently released Change Request (CR) No. 10874 (https://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/2018Downloads/ R78QRI.pdf), which requires home health agencies (HHAs) to submit reconsiderations for quality reporting payment reductions to the Medicare Administrative Contractors (MACs) electronically. CMS has implemented this change beginning on September 11, 2018. If an HHA does not submit required quality data, annual payment updates (APU) for the year are reduced by 2 percentage points. Quality data includes the Outcome and Assessment Information Set (OASIS) submission for each year for episodes beginning on or after July 1 of the previous year and before July 1 of the current year, and the Home Health Care Consumer Assessment of Health Providers and Systems (HHCAHPS) monthly data collection and submission from April 1 of the prior year through March 31 of the current year. HHAs may request reconsideration to the MAC if they believe the 2 percentage point APU reduction was an error. The reconsideration request must include a letter requesting reconsideration and it must provide documentation demonstrating compliance. Requests and supporting documentation must be received electronically no later than 30 days from the date of the MAC notification. For further information, contact Patrick Conole at (518) 810-0661 or pconole@hcanys.org.

DOL Issues Updated FMLA Forms In early September, the U.S. Department of Labor’s (DOL) Wage and Hour Division released new Family Medical Leave Act (FMLA) notices and certification forms. The new forms are available at https://www.dol.gov/whd/fmla/2013rule/militaryForms.htm. The previous forms expired on May 31, 2018, and since then DOL had renewed the expired forms on a monthly basis pending the federal Office of Management and Budget (OMB) approval of the new forms. According to the Littler Law Firm, the new versions are identical to the expired forms except for an updated expiration date of August 31, 2021, which appears in the top right corner of the forms. Employers should still ensure that they are now using the new forms. In addition to the Family Medical Leave Act, home care providers in New York also have to abide by other requirements, including the state Paid Family Leave law (https://paidfamilyleave.ny.gov/paid-family-leaveinformation-employers) and, for New York City employers, the New York City Paid Safe and Sick Leave law (https://www1.nyc.gov/site/dca/about/paid-sick-leave-law.page).

Volume 3, No. 36 September 17, 2018

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

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Upcoming Deadlines Requirement/Change

Effective/Due Date

More Information

Transition Period for Using Health Insurance Claim Number (HICN) or new Medicare Beneficiary Identifier (MBI)

April 1, 2018 to December 31, 2019

https://www.cms.gov/Medicare/New Medicare Card/index.html

Deadline for NYC employers to post sexual harassment poster and give new September 6, 2018 employers related fact sheet

2019 Hospice Minimum Wage Survey Due

September 21, 2018 (new date)

https://www.surveygizmo.com/s3/4543360/Mi nimum Wage Survey Hospice 2019

2019 Assisted Living Program Minimum Wage Survey Due

September 21, 2018 (new date)

https://www.surveygizmo.com/s3/4543570/Mi nimum Wage Survey ALP 2019

MLTC/LHCSA Contract Limits go into effect October 1, 2018

https://www.health.ny.gov/health_care/medic aid/redesign/mrt90/mltc_policy/lhsca_contract _guidance.htm

Emergency Preparedness Interoperable Communications Drill

https://hca nys.org/wp content/uploads/2018/08/SitReport082018.pdf

October 9, 2018

All NYS employers are required to adopt Effective October 9, sexual harassment prevention policies and 2018 training program

https://www.ny.gov/programs/combating sexual harassment workplace

LHCSA proposed public need methodology

Comments due October 12, 2018

https://hca nys.org/wp content/uploads/2018/07/9594a968 7de4 4c67 b52d 62fa0234c9cb.pdf

Medicare Open Enrollment: Beneficiaries can change their Medicare coverage from managed care plan to fee for service or vice versa, and can join or switch prescription drug plan

October 15 to December 7, 2018

www.medicare.gov

RFA for Regional Resource Development Centers for NHTD and TBI programs

November 1

https://www.health.ny.gov/funding/rfa/17782/ index.htm

2017 LHCSA Statistical Report Due

November 16, 2018

https://commerce.health.state.ny.us/public/hc s_login.html

MLTC Enrollment Lock In Starts

December 1, 2018

https://www.health.ny.gov/health_care/medic aid/program/update/2018/2018 06.htm#mltc

January 1, 2019

https://www.ny.gov/programs/combating sexual harassment workplace

Employees must complete sexual harassment training

https://www1.nyc.gov/assets/cchr/downloads/ pdf/materials/SexHarass_Notice 8.5x11.pdf https://www1.nyc.gov/assets/cchr/downloads/ pdf/materials/SexHarass_Factsheet.pdf https://www1.nyc.gov/site/cchr/index.page

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

Volume 3, No. 36 September 17, 2018 

Hospice and ALP Minimum Wage Survey Due September 21 The state Department of Health (DOH) has extended the deadline to submit the minimum wage survey for hospices and assisted living programs (ALPs) from September 19 to September 21. As covered in the September 4 edition of The Situation Report, DOH released two separate Dear Administrator Letters (DALs) and two surveys. The hospice DAL is at https://hca-nys.org/wp-content/uploads/2018/09/2019-Hospice-survey-MW-DAL.pdf and the hospice survey is at https://www.surveygizmo.com/s3/4543360/Minimum-Wage-Survey-Hospice2019. The ALP DAL is at https://hca-nys.org/wp-content/uploads/2018/09/2019-ALP-Survey-MW-DAL.pdf and the ALP survey is at https://www.surveygizmo.com/s3/4543570/Minimum-Wage-Survey-ALP-2019. HCA strongly encourages hospice and ALP 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 or ALP-rates@health.ny.gov.

Hospice Manual Updates Include Payment Policy Changes, Attending PA Designation The U.S. Centers for Medicare and Medicaid Services (CMS) recently issued Change Request (CR) No. 10517 (https://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/2018Downloads/R246BP.pdf) which updates the Internet Only Manual (IOM) with policies related to the Bipartisan Budget Act of 2018 for hospices. The changes reflect that, starting on January 1, 2019, physician assistants (PAs) will be recognized as designated hospice attending physicians, in addition to physicians and nurse practitioners. CR No. 10517 also updates sections of the IOM with policies related to the calculation methodology for the cap amount for hospices required by the Improving Medicare Post-Acute Care Transformation Act (IMPACT Act) of 2014. In addition, the CR includes IOM updates to policies regarding timeframe and accounting procedures for the cap amount for hospices as discussed in the fiscal year (FY) 2016 Hospice Wage Index and Payment Rate Update final rule published on August 6, 2015.

eMedNY Provider Training Opportunities Still Available There are still openings for eMedNY trainings in September. The schedule is available at https:// www.emedny.org/training/index.aspx. Some of the topics offered include: new provider billing; website review and ePACES. Questions can be directed to the eMedNY Call Center at 800-343-9000.

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

Volume 3, No. 36 September 17, 2018 

Health Resources 

“Medicare Advantage: Benefits and Challenges of Payment Adjustments Based on Beneficiaries’ Ability to Perform Daily Tasks,” by the U.S. Government Accountability Office https://www.gao.gov/assets/700/694425.pdf

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“U.S. Home Care Workers: Key Facts,” by PHI https://phinational.org/wp-content/uploads/2018/08/U.S.-Home-Care-Workers-2018-PHI.pdf

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