September 24, 2018 Edition of The Situation Report

BREAKING: GLITCH ON LHCSA STAT REPORT

COMPLIANCE RELIEF PROPOSALS

JOINT-EMPLOYER RULING

PHHPC

DOH today reports of a glitch preventing some providers from starting the Statistical Report if they have an “&” in their name.

CMS has issued a set of proposals for relief from emergency preparedness and other compliance requirements detailed in HCA memo.

HCA’s Counsel at Jackson Lewis explains the implications of a proposal to change definition of “joint-employer” standard, which has implications for collective bargaining.

Council to consider CHHA merger and acquisition, and ALP-connected LHCSA requests on September 27.

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Your Source for HOME CARE News, Policy and Advocacy

UPCOMING PROGRAMS Ready and in Command: Hot Topics and Best-Practices in Emergency Preparedness (Sept. 27) Troy All-Sector Sepsis Summit (Oct. 3) Albany Corporate Compliance Symposium CoSponsored by HCA and HPCANYS (Oct. 17) Albany Downstate LHCSA & HCC Forum (NEW DATE: Oct. 25) NYC Register at https:// hca-nys.org/eventseducation/upcomingevents

Vol. 3, Issue 37 | September 24, 2018

HCA Invited to Participate in Special Assembly Meeting on 24-Hour Live-In Compensation HCA reschedules LHCSA Forum as a result: new date is October 25 The office of Assembly Health Committee Chairman Richard Gottfried has invited HCA and other stakeholders to an October 4 roundtable meeting on labor regulations related to compensable hours for 24-hour/live-in home care cases. This is a selected, by-invitation, discussion being jointly held by the Assembly Committees on Health and Labor.

See COMPENSATION p. 7

Hurricane Florence a Reminder about EP Requirements, BestPractices Covered at HCA Conference This Week

Every Provider, MLTC Should Have a Rep at Oct. 3 Sepsis Summit

Members also urged to participate in HEPC sessions and DOH drills In the wake of Hurricane Florence, HCA wishes the quickest return to normal operations and recovery for those affected by the disaster, including home care and hospice providers and the patients they serve.

See FLORENCE p. 2

INSIDE HCA Invited to Assembly Meeting on 24-Hour Live-In Compensation…..............1 Hurricane a Reminder on EP Issues Covered at HCA Conference….....................1 Every Provider, MLTC Should Have a Rep at Oct. 3 Sepsis Summit….......................1 Disaster Relief for North and South Carolina…...................................................3 BREAKING UPDATE: LHCSA Stat Report Glitch Affects Some Providers.................4 A Message from HCA Sponsor RBC Limited….....................................................4 A Message from HCA Sponsor Simione Healthcare Consultants….....................5 CMS Webinar on Electronic Medicare Cost Report Filing: Oct. 15…....................6 HCA Memo Outlines New CMS Proposals for Regulatory Compliance Relief…......7

Sepsis summit drawing hospitals, facilities, organizations across NYS – make sure home care’s role, commitment and value are in force Every HCA member CHHA, LHCSA, MLTC and allied home care organization should register a representative for the upcoming October 3 all-sector/all-partner sepsis summit in Albany.

See SEPSIS p. 5

HHCAHPS Preview Reports with Star Ratings Available.............................8 Home Health Agency Profile Updated..........................................................9 Update on New Medicare Card Replacement Initiative…..............................9 Controversial Joint-Employer Standard Faces Potential Reversal...............10 NGS Conducting Virtual Medicare Conference October 9-10…....................12 Medicare Appeal Threshold Amounts for 2019 Posted.................................12 DOH Posts RFI on Advanced Planning...........................................................12 Important Upcoming Deadlines….............................................................13 PHHPC Committee Agenda Posted..............................................................14 Health Resources…..................................................................................14

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

FLORENCE from p. 1 We know the importance of constantly reviewing your agency’s emergency preparedness plan, so it is adjusted to meet new needs and events. That is the message of HCA’s upcoming conference on September 27, Ready and In Command; Hot Topics and Best-Practices in Emergency Preparedness.

Home health agencies, hospices and others are required to develop and maintain an emergency preparedness plan that includes a process for cooperation and collaboration with local, tribal, regional, state, and federal emergency preparedness officials’ efforts to maintain an integrated response during a disaster or emergency situation. Through a state Department of Health (DOH) grant and in coordination with the New York State Association of Health Care Providers (HCP), HCA has created several venues and connections for making these required efforts at coordination with governing entities and groups, like the Health Emergency Preparedness Coalitions (HEPCs), which we will be reinforcing at the conference. 

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In addition, Rochelle Eggleton, MBA, RN, Clinical Associate, Quality in Real Time, will describe the importance of conducting an “All Hazards Approach” to address unforeseen events and to ensure continuity of patient care and continuity of your agency’s operations.

The conference will also include the opportunity to participate in a “tabletop exercise” with the state Department of Health to meet one of your annual requirements under the federal Conditions of Participation (CoPs) for Emergency Preparedness.

Lastly, you will learn how to protect your organization from cyber-attacks that can put patient care or protected health information at risk, and learn about the Social Vulnerability Index, a tool that will help you protect the health of Medicare beneficiaries who live independently and rely on electricitydependent medical equipment.

Finger Lakes HEPC Meeting This past week, HCA participated in the Finger Lakes Health Emergency Preparedness Coalition (HEPC) meeting. HCA encourages members and non-member home care providers and managed care 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 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 plans to become involved with their regional HEPCs to fulfill federal requirements and to get connected with authorities who can help you assure the smoothest possible functioning in preparation for, during and in the aftermath of a disaster.

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. Participating in your local HEPC will help your agency develop a network of community partners and resources which will assist in your preparation for emergencies.

The following are upcoming HEPC meetings; those interested in participating should contact Andrew Koski at akoski@hcanys.org.         

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

The Finger Lakes HEPC meeting included presentations on the VA Medical Center telehealth programs; Chemung County escaped prisoner exercise; a statewide Interoperable Communications drill on October 9, 2018 (see below); and an overview of an upcoming Coalition Surge Test (CST) in western New York scheduled for April 2019.

Interoperable Communications Drill On October 9, DOH will hold an Interoperable Communications Drill. Those agency staff correctly

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Disaster Relief for North and South Carolina The Association for Home & Hospice Care of North Carolina (AHHC of NC) and its charitable organization, the Hospice and Home Care Foundation of North Carolina, have established a fund for disaster relief for home care and hospice employees in North and South Carolina whose lives have been turned upside down by Hurricane Florence.

Home care and hospice nurses, aides, social workers, chaplains, therapists, and administrators are picking up the pieces in their own lives while ensuring the well-being of their patients. Your tax-deductible donation could help ease the burden faced by so many of our colleagues in the Carolinas.

All funds collected will be distributed directly to employees working in home care and hospice who are in need of assistance in the wake of Hurricane Florence. AHHC of NC and the Foundation will review applications for funds and determine distribution amounts based on need.

Learn more about the Hurricane Florence Disaster Relief Fund for Home Care & Hospice Employees at https://www.ahhcnc.org/ florence. Donations are accepted at https://www.ahhcnc.org/ AHHCNCMember/AboutAHHC/ Donate_to_HFDRF.aspx.

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listed in the Health Commerce System (HCS) Communications Directory will receive an Integrated Health Alerting Network System (IHANS) notification at about 9 a.m. Agencies will have until sometime that morning to complete the drill and demonstrate their ability to receive information by testing whether the agency has appropriate roles assigned and current contact information in the HCS. While the drill is not required, HCA strongly encourages participation. HCA urges all providers and plans to make sure your HCS contact information is accurate and updated; take a moment to do so today, as this will also be scrutinized in the drill.

This follows two webinars recommended by HCA that DOH recently held – “Exercises 101” on September 7 and “After Action Reports” on September 21. The Exercises 101 handouts are at https://hca-nys.org/wp-content/uploads/ 2018/09/Exercises-101-CMSwebinar-for-IOC-drill-8-14-18.pdf and a recording of the webinar is at https:// meetny.webex.com/meetny/lsr.php?RCID=dd806eef5f7a4dfd954c4da677c1b61d. The After Action Reports handouts are at https://hca-nys.org/wp-content/uploads/2018/09/After-Action-Report_DOHwebinar_092118.pdf.

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.

LHCSA Statistical Report Technical Glitch Affects Some Providers The state Department of Health (DOH) has announced “a bug” in the 2017 LHCSA Statistical Report, due November 16, which affects agencies with an “&” in their name. This bug manifests itself with a root element error message, DOH says.

This error will prevent LHCSAs from starting a report, and DOH says the fix will require the provider to download a new UDCS Report manager when it is available. A note will be sent when the corrected software is available on the Healthcare Financial Data Gateway, and HCA will be sure to alert providers of any significant updates.

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

The state Department of Health has also signaled out sepsis as a mandatory metric for providers and plans in the state’s required value based payment contracting requirement.

SEPSIS from p. 1 If you or your agency is not already registered, please do so at https://events.eply.com/ AllSectorSepsisSummit2598206.

Meet and plan collaborative interventions for sepsis with fellow agencies, facilities, health plans, practitioners and state/national leaders in this important October 3 session.

The significance of this session, and the important role of every sector organization participating in it, is underscored by the breadth of statewide and regional organizations collaborating to bring together all facilities, agencies, practitioners and plans for this summit. This program is of a different scale and purpose than the regional training sessions that you may have already attended through our Stop Sepsis at Home initiative, so please be sure that you participate no matter what your level of activity has been to date on HCA’s sepsis programs.

This all-sector summit on sepsis, which is a national-first, is co-sponsored by virtually the entire continuum of health organizations, along with state and national health and sepsis leaders. Co-sponsors include HCA, IPRO, the Healthcare Association of New York State, the Rory Staunton Foundation, Sepsis Alliance, the state Department of Health, the state Office for Aging, LeadingAge New York, the New York State Health Facilities Association, the Medical Society of the State of New York, BlueCross/ BlueShield, the New York State Volunteer Ambulance and Rescue Association, United New York Ambulance Network, and others.

The collaborative involvement of every organization is vital, with sepsis by far the costliest of conditions in hospitals across all payors and the leading cause of mortality and readmissions to hospitals. Sepsis also has an 80-90 percent incidence rate in the home/community, poses a high-risk for the home care population and those within home care’s reach, and its catastrophic impacts can be prevented through increased education/awareness, screening, early detection and timely intervention.

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States across country urge formal briefings on HCA initiative Meanwhile, states across the country continue requesting formal briefings on the HCA home care sepsis initiative.

This past week, HCA Interim President Al Cardillo presented the home care role in sepsis and the

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work being done by HCA and New York State providers at a major sepsis summit in Philadelphia. The session was attended by a large audience of hospital, physician and other clinical and public health representatives, and hosted at the Jefferson Health System. It included representatives from neighboring states.

Complementing this otherwise institution-focused program, HCA introduced the community health component, showing the hospital and medical community a new dimension of sepsis tools and capabilities via collaboration with and by home care through the HCA initiative.

The steady stream of briefings continues.

Tomorrow, Mr. Cardillo, IPRO sepsis project director Eve Bankert and HCA sepsis workgroup clinical leader Amy Bowerman of Senior Network Health and VNA of Utica and Oneida County will present the HCA initiative to the New Jersey Hospital Association. This is followed by several national presentations of the HCA sepsis tool scheduled in October and November to hospitals under the CMS national partners for patients initiative, to home care agencies and organizations under the CMS national Home Health Quality Improvement campaign, and to all of the state home care associations at the national Forum of States meeting in two weeks.

In addition, the U.S. Centers for Disease Control and Prevention has scheduled HCA and the state Office for the Aging (NYSOFA) for a discussion of our collaborative work as a potential model for the states. Coming soon is a series of Public Service Announcements hosted by the State Office for Aging featuring NYSOFA Director Greg Olsen, HCA, Sepsis Alliance and the HCA sepsis initiative. These announcements are expected to me widely circulates, and HCA will share them with the membership once finalized.

As a New York provider or plan, and whether or not you are a current user of the HCA sepsis tool, don’t miss the upcoming statewide sepsis summit. If you wish to adopt or explore adoption of the HCA sepsis tool, just e-mail your interest to Sepsistool@hcanys.org.

CMS Webinar on Electronic Medicare Cost Report Filing: Oct. 15 The U.S. Centers for Medicare and Medicaid Services (CMS) is hosting a webinar on Monday, October 15 from 1:30 to 3 p.m. for home health and other Part A providers on the new process for submitting the Medicare Cost Report electronically.

To participate, visit https://blh.ier.intercall.com/details/038d286d6c164663aef85ddc8aa977d6.

During the webinar, participants will learn how to use the new Medicare Cost Report e-Filing (MCReF) system. Medicare providers will have the opportunity to use MCReF to submit cost reports with fiscal years ending on or after December 31, 2017.

Providers may still mail or hand-deliver cost reports to the Medicare Administrative Contractor (MAC) but must use MCReF if choosing to submit electronically.

Attendees may e-mail questions in advance to OFMDPAOQuestions@cms.hhs.gov with “Medicare Cost Report e-Filing System Webcast” in the subject line. These questions may be addressed during the webcast or used for other materials following the webcast.

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The Situation Report: the Home Care Association of New York State  COMPENSATION from p. 1 The roundtable is intended to focus on the Department of Labor’s 2010 opinion letter and regulations pertaining to compensation for certain 24-hour employees, the legal challenges based on the opinion letter and regulations, and the potential effect these cases will have on 24-hour home care services. The Committee Chairs have extended an invitation to HCA and specific participants to attend this roundtable and engage in a discussion on matters relating to this issue.

These regulations have been the subject of litigation, recent Department of Labor (DOL) emergency rulemaking, and several reports to the HCA membership about the status of the regulations and HCA’s intensive advocacy activity on this issue.

Over the past several months, we’ve submitted amicus briefs as part of court cases on the matter, and we’ve pressed for emergency regulations that are now in force to maintain long-standing policies on the calculation of compensable hours while recognizing the fiscal and programmatic impacts of changing this policy, which would have to be addressed by the state.

HCA has also delivered testimony at a DOL hearing in July that considered the issue of compensable hours on 24hour shifts more universally, beyond just home care.

Because the upcoming Assembly hearing conflicted with the date of our previously scheduled Downstate LHCSA

Volume 3, No. 37 September 24, 2018 

Forum, HCA has rescheduled the Forum to October 25. It will be held at the same location and at the same time.

HCA members who have already registered for the Downstate LHCSA Forum were notified last week by phone and e-mail about the date change: HCA will simply transfer your registration to the new date unless we hear from you that you are unable to attend on October 25.

Please see our updated Forum registration form here: https://hca-nys.org/wp-content/uploads/ 2018/09/October-25-2018-Downstate-LHCSAand-HCC-Forum-Registration-Form.pdf.

Indeed, the policies and legal framework surrounding 24-hour/live-in home care are among several important agenda items for discussion with members at the LHCSA Forum.

Our newly rescheduled Forum will allow for the most up-to-date developments from the Assembly hearing, as well as a range of other agenda items that warrant attention from LHCSAs and HCA, including: LHCSA-MLTC contract limits; the LHCSA moratorium and impending need methodology; Statistical Reports; regulatory issues; uniform billing codes; the CDPAP fiscal intermediary authorization process; and more.

HCA Memo Outlines New CMS Proposals for Regulatory Compliance Relief HCA last week circulated a memo outlining the elements of a proposed federal rule that seeks to provide home care and hospice regulatory relief. Please see the memo here: https://hca-nys.org/wp-content/ uploads/2018/09/Memo-Proposed-Regulatory-Relief-for-Home-Health-and-Hospice.pdf.

The U.S. Centers for Medicare and Medicaid Services (CMS) indicates that the proposed rule would “relieve burden on healthcare providers by removing unnecessary, obsolete or excessively burdensome Medicare compliance requirements.”

The proposed rule is in the Federal Register at https://www.govinfo.gov/content/pkg/FR-2018-09-20/pdf/ 2018-19599.pdf. Comments are due November 19, 2018.

The proposed home care and hospice changes cover: timelines for providing requested clinical records to patients; modifications to home health and hospice aide supervision and training requirements; hospice

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medication management policies and instructions to patients about disposal of controlled substances; flexibility on verbal notification of patients’ rights; orientation of staff providing hospice care to nursing home residents; and multiple provisions affecting emergency preparedness testing, documentation and training.

HCA will be further reviewing these proposed changes, analyzing their relationship to state regulations in the applicable areas described, and provide any further updates as necessary.

October 17 Compliance program Members are strongly encouraged to attend our upcoming Corporate Compliance Symposium on October 17 in Albany (co-sponsored with the Hospice and Palliative Care Association of New York State) to learn more about the federal policy environment for compliance issues affecting home care, hospice and Managed Long Term Care. Registration is here: https://hca-nys.org/wp-content/uploads/2018/ 09/2018-Corporate-Compliance-Program-Registration-Brochure.pdf.

September 27 Emergency Preparedness program CMS’s proposal also includes some very specific changes to the timing and character of compliance with emergency preparedness drills and exercises mandated by the home health and hospice Conditions of Participation (CoPs).

HCA’s upcoming conference on Emergency Preparedness Hot-Topics (on September 27 in Troy, near Albany) will not only cover how to ensure an all-hazards emergency preparedness plan and other issues, but the session will close with a DOH-led tabletop that will meet the CoP requirement for a secondary emergency preparedness exercise. Registration is here: https://hca-nys.org/wp-content/uploads/2018/08/ HCA-Emergency-Preparedness-Conference-9-27-18-Brochure.pdf.

HHCAHPS Preview Reports with Star Ratings Available Preview Reports reflecting results from the Home Health Care Consumer Assessment of Healthcare Providers and Systems (HHCAHPS) survey from April 2017 through March 2018 are now available on https:/ /homehealthcahps.org under the “For HHAs” tab. You must be logged into the website to view your report.

These same data will be updated on Home Health Compare on www.medicare.gov in October 2018.

The Preview Reports present the publicly reported results with star ratings for those agencies with a sufficient number of completed interviews to receive star ratings. Agencies must have data for 40 or more patient surveys in the reporting period in order to have star ratings.

To access your agency’s HHCAHPS Preview Report, log into the HHCAHPS website using your username and password. Select the “Survey Preview Report” link under the “For HHAs” tab.

If you have comments about your star ratings on the Preview Report, please e-mail the following information to hhcahps@rti.org by October 12, 2018: 

Your name, your facility name, your CMS Certification Number, and your contact information.

Continued on next page

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Continued from previous page 

Your comments about your preview report.

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If you believe your HHCAHPS star ratings are not correct, submit evidence showing why the Star Ratings are incorrect. Note that if you have historically had higher ratings than are shown, this is not considered evidence. You must provide information showing that the data submitted by your vendor for the most recent quarter are incorrect.

For more information about the Preview Reports, see this document on the HHCAHPS website, accessible once you are logged in: https://homehealthcahps.org LinkClick.aspx?fileticket=rEmqINcxYK8%3d&tabid=277.

For more information about HHCAHPS star ratings, see: https://homehealthcahps.org/GeneralInformation/ StarRatingsInformation.aspx.

Questions about the star ratings or Preview Report can be addressed to the HHCAHPS Survey Coordination Team at hhcahps@rti.org or (866) 354-0985.

Home Health Agency Profile Updated The state Department of Health (DOH) has announced the release of the home care domain and overall ratings on the New York State Health Profiles website.

These ratings can be found on the quality tab of each Certified Home Health Agency (CHHA): https://profiles.health.ny.gov/home_care/counties_served/type:CHHA. According to DOH, the home care profiles domain and overall ratings provide a consumer-friendly view of CHHA performance within a category of measures.

For more information on the methodology, visit: https://profiles.health.ny.gov/home_care/pages/ methodology/. Questions can be submitted to NYSQARR@health.ny.gov.

Update on New Medicare Card Replacement Initiative Effective September 20, 2018, the eMedNY Eligibility Response for clients enrolled in both Medicare and Medicaid will return the new MBI (Medicare Beneficiary Identifier), if available, when using the following access methods for eligibility verification:    

ARU ePACES POS Devices 270/271 Transactions

Until December 31, 2019, if the MBI is not available for the client, the HICN (Health Insurance Claim Number) will be returned by the access methods noted above.

After January 1, 2020, only the MBI will be returned.

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Continued from previous page This action is being taken to comply with the U.S. Centers for Medicare and Medicaid Services New Medicare Card Replacement Initiative. 

Providers who use ePACES to verify eligibility should inform their staff or agent(s) that as of September 20, the ePACES Eligibility Response Medicare Information Section’s “Health Insurance Claim Number HIC” label will read “Medicare Identifier.”

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Providers who use the POS device to verify eligibility should inform their staff or agent(s) that even though the HICN Tag will not change, the MBI will be displayed if available, as of September 20, 2018.

As with other access methods for eligibility, if the MBI is not available, HICN will be displayed until January 1, 2020. The MBI is unique in that it contains only numbers and uppercase letters (no special characters) and will not contain the letters S, L, O. I. B. and Z. Questions can be directed to the eMedNY Call Center at 1-800-343-9000.

More information on the New Medicare Card Replacement Initiative is at https://www.emedny.org/info/MBI/index.aspx.

Controversial Joint-Employer Standard Faces Potential Reversal

By Frank J. Fanshawe, Principal and Ashley Solowan, Law School Graduate, Jackson Lewis, P.C. The National Labor Relations Board has published a Notice of Proposed Rulemaking in the Federal Register to narrow the joint-employer standard under the National Labor Relations Act (“Act”). The notice is at https://www.govinfo.gov/content/pkg/FR-2018-09-14/pdf/2018-19930.pdf.

A determination by the Board that two separate businesses constitute a “joint employer” under the Act is significant for home care agencies, MLTCs and other providers. When the Board makes such a finding, it can compel the joint employer to bargain in good faith with the bargaining representative of the jointly employed workers; reinstate an employee fired by one of the joint employers in violation of the Act; or order each joint employer to cease and desist from engaging in conduct that violates the Act. It is important to note that this joint-employer standard generally differs from the tests for joint employment under other federal and state labor statutes, such as the Fair Labor Standards Act (FLSA). Those federal and state statutes apply different criteria to determine if there is joint employment of employees. Consequently, the joint employer standard under the National Labor Relations Act would not be used to determine, for example, whether joint employment exists in the context of alleged FLSA wage and hour violations.

The proposed rule, published on September 14, 2018, would redefine the controversial Browning-Ferris jointemployer standard with a new standard. The new standard would consider an employer a joint-employer of another employer’s employees only if it possesses and exercises “substantial, direct and immediate control” over the essential terms and conditions of employment and has done so in a manner that is not

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limited and routine. Indirect influence and contractual reservations of authority would no longer be sufficient to establish a joint-employer relationship.

In 2015, the Board’s decision in Browning-Ferris Industries, 362 NLRB No. 186, changed the long-standing joint-employer standard, making it easier to find two companies joint employers. Under the BrowningFerris standard, two entities are deemed joint employers based on the mere existence of reserved joint control, indirect control, or control that is limited and routine. This was a sharp departure from the previous standard that, much like the proposed rule, would consider an employer a joint employer of a separate employer’s employees only if it exercised “direct and immediate” control over those employees.

The Browning-Ferris standard significantly increased the number of potential joint employers under the National Labor Relations Act. It quickly drew intense pushback from the employer and franchise community.

On December 14, 2017, however, in Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co., 365 NLRB No. 156, the Board overruled Browning-Ferris. This decision was short-lived. Two months later, in February 2018, the Board unanimously vacated Hy-Brand following an inspector general finding a Board member improperly participated in the decision. Thus, the Browning-Ferris standard remains controlling.

In the Proposed Rule, the Board stated that it is once again revisiting the joint-employer standard to foster predictability, consistency, and stability in the determination of joint-employer status. The Board stated further that the rule is intended “to reflect the Board majority’s initial view that the National Labor Relations Act’s intent is best supported by a joint-employer doctrine that does not draw third-parties who have not played an active role in deciding wages, benefits, or other essential terms and conditions of employment, into a collective-bargaining relationship for another employer’s employees.”

The Board went on to say that its “preliminary belief is that, absent a requirement of proof of some ‘direct and immediate’ control to find a joint employment relationship, it will be extremely difficult for the Board to accurately police the line between independent commercial contractors and genuine joint employers.” Therefore, the Board concluded that “a putative joint employer must exercise substantial direct and immediate control before it is appropriate to impose joint and several liability on the putative joint employer and to compel it to sit at the bargaining table and bargain in good faith with the bargaining representative of its business partner’s employees.”

The proposed rule is open for public comment through November 13, 2018. The Board will then review the public comments and replies submitted and will issue a final rule. Usually, a final rule becomes effective within 30 days after publication in the Federal Register.

Please note that HCA 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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NGS Conducting Virtual Medicare Conference October 9-10 The National Government Services (NGS) Provider Outreach and Education Team will be holding a virtual conference on October 9 and 10 offering a variety of home health, Part A and Part B self-service sessions. There are no charges for this virtual conference, and participants may register for as many sessions as they’d like.

Each session will begin with a presentation from NGS followed by questions and answers. Participants will be awarded 1.5 Medicare University Credits (MUC) per session through Medicare University. Since a Medicare Administrative Contractor (MAC) is presenting this information, each session will also be eligible to receive 1.5 CEUs with the American Academy of Professional Coders (AAPC) if you are a Certified Professional Coder (CPC). Those reporting CEUs to the AAPC will need to keep their e-mail registration confirmation as proof for any future AAPC audit.

NGS’s education or training events are on the events calendar at www.NGSMedicare.com. Providers should click the “HHH” home page link for the Home Health, and Hospice portal, and enter their state, then click “Accept.” Once in the Jurisdiction 6 HH+H portal, click “Education,” then scroll down to find the Virtual Conference to register.

Medicare Appeal Threshold Amounts for 2019 Posted The U.S. Centers for Medicare and Medicaid Services (CMS) has announced the annual adjustment in the “amount in controversy” threshold amounts for Administrative Law Judge (ALJ) hearings and judicial review under the Medicare appeals process.

The amounts will be $160 for ALJ hearings (same as 2018) and $1,630 for judicial review (up from $1,600 in 2018).

More information is at https://www.govinfo.gov/content/pkg/FR-2018-09-20/pdf/2018-20506.pdf.

DOH Posts RFI on Advanced Planning The state Department of Health (DOH) has released a Request for Information (RFI) to gather input for any necessary changes to ensure the Medical Orders for Life Sustaining Treatment (MOLST), non-hospital Do Not Resuscitate (DNR), and Health Care Proxy forms are used appropriately and are understandable to the general public.

The RFI is at https://hca-nys.org/wp-content/uploads/2018/09/RFI_Advanced-Planning_Sept-2018.pdf.

DOH would also like to know how it can support advance care planning conversations. The RFI seeks recommendations for language changes, educational materials, information on barriers to having the conversation about advance care planning, and any data that organizations may be collecting on this process.

Comments and recommendations are due October 18, 2018 and should be sent to ALTCteam@health.ny.gov.

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

Volume 3, No. 37 September 24, 2018 

Upcoming Deadlines Requirement/Change

Effective/ Due Date

More Information

Transition Period for Using Health April 1, 2018 to Insurance Claim Number (HICN) or new December 31, https://www.cms.gov/Medicare/NewͲMedicareͲCard/index.html Medicare Beneficiary Identifier (MBI) 2019 Public Health and Health Planning Council Committee on Establishment and Project Review

September 27, https://www.health.ny.gov/facilities/public_health_and_health_planning_council/meetings/2018Ͳ09Ͳ 27/docs/exhibits.pdf 2018

MLTC/LHCSA Contract Limits go into effect

October 1, 2018

https://www.health.ny.gov/health_care/medicaid/redesign/mrt90/mltc_policy/lhsca_contract_guidance.htm

Emergency Preparedness Interoperable Communications Drill

October 9, 2018

https://hcaͲnys.org/wpͲcontent/uploads/2018/08/SitReport082018.pdf

All NYS employers are required to adopt sexual harassment prevention policies and training program

Effective October 9, 2018

https://www.ny.gov/programs/combatingͲsexualͲharassmentͲworkplace

Public Health and Health Planning Council

October 11, 2018

https://www.health.ny.gov/facilities/public_health_and_health_planning_council/

LHCSA proposed public need methodology

Comments due October 12, https://hcaͲnys.org/wpͲcontent/uploads/2018/07/9594a968Ͳ7de4Ͳ4c67Ͳb52dͲ62fa0234c9cb.pdf 2018

Medicare Open Enrollment: Beneficiaries can change their October 15 to Medicare coverage from managed care December 7, www.medicare.gov plan to feeͲforͲservice or vice versa, 2018 and can join or switch prescription drug plan RFA for Regional Resource Development Centers for NHTD and TBI November 1 https://www.health.ny.gov/funding/rfa/17782/index.htm programs November 16, https://commerce.health.state.ny.us/public/hcs_login.html 2017 LHCSA Statistical Report Due 2018 December 1, MLTC Enrollment LockͲIn Starts https://www.health.ny.gov/health_care/medicaid/program/update/2018/2018Ͳ06.htm#mltc 2018 Employees must complete sexual harassment training

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January 1, 2019

https://www.ny.gov/programs/combatingͲsexualͲharassmentͲworkplace

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

Volume 3, No. 37 September 24, 2018 

PHHPC Committee Agenda Posted The state Department of Health has posted the agenda for the September 27 meeting of the Public Health and Health Planning Council (PHHPC) Committee on Establishment and Project Review.

The agenda, along with accompanying materials, is at https://www.health.ny.gov/facilities/ public_health_and_health_planning_council/meetings/2018-09-27/docs/exhibits.pdf.

On the agenda are the following home care applications: 

One Certified Home Health Agency (CHHA) requests approval to acquire and merge the license and assets of another CHHA into its operations.



Three entities want to become Licensed Home Care Services Agencies affiliated/associated with an Assisted Living Program.

The Committee on Establishment and Project Review meeting on September 27 and the full PHHPC meeting on October 11 can be viewed on a webcast at https://www.health.ny.gov/events/webcasts/.

Health Resources 

“New York Consumer Guide to Health Insurers,” by the state Department of Financial Services https://www.dfs.ny.gov/consumer/health/cg_health_2018.pdf



“The Future of Caregiving: Leading the Change,” by the NYS Health Foundation https://nyshealthfoundation.org/wp-content/uploads/2018/09/AARP-NY_Family-CaregivingWhitepaper.pdf

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

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