December 3, 2018 Edition of The Situation Report

LAWTALK

REQUIRED REPORTS

CFCO OPTION

DOH issues required Statistical and Utilization Reports for CHHAs, LTHHCPs, and hospice, plus an update on LHCSA compliance and sanctions from November Stat. Report deadline.

DOH pursues HCArecommended approach for CFCO services that we advanced after HCA consultation with MLTC plans, provider members.

HCA welcomes a new member of our Policy Team, Lauren Ford, who will concentrate on HCA’s research functions.

The latest installment of our LawTalk column from attorneys at Jackson Lewis discusses federal compensation limits, distinct from EO No. 38.

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UPCOMING PROGRAMS HCA Bootcamp: Regulatory & Compliance Update for CDPAP FIs Dec. 5 (NYC) Webinar for Agencies Not Yet Using HCA’s Sepsis Tool Dec. 5 Tips and Tricks for Working with ThirdParty Payers Free Webinar Dec. 6 Two-Part Webinar Series on OASIS D Dec. 11 and Dec. 13 2019 Northeast Home Health Leadership Summit Jan. 22-24, 2019 (Boston) Register at https:// hca-nys.org/eventseducation/upcomingevents

HCA WELCOMES LAUREN FORD TO POLICY TEAM

Your Source for HOME CARE News, Policy and Advocacy

Vol. 3, Issue 47| December 3, 2018

HCA Presses PDGM Legislative Fix with Seven Key Congressional Offices HCA met last week with the offices of seven New York Congressional Representatives who serve on key Medicare committees, presenting them with a single target message: pass a series of bills to protect home health services from $1 billion in cuts nationwide assumed under the Patient-Driven Groupings Model (PDGM). A list of the offices we met with is provided later in this article.

See PDGM p. 2

Respond Now to HCA’s Annual Finance, Program Survey As announced in an e-mail alert this morning, HCA needs your responses to our annual financial and program survey, just today finalized for 2018-19.

Please designate one person at your organization to complete the survey, though the process may require input from several See SURVEY p. 4

INSIDE HCA Presses PDGM Legislative Fix..............................................................1 Respond Now to HCA’s Annual Finance, Program Survey.............................1 Continuing the Momentum on National Home Care Month.........................1 Member Hiring Announcement.................................................................4 How Can Home Care Garner an Edge in New Models of Care?.......................5 DOH Activates 2017 CHHA, LTHHCP Hospice Stat, Utilization Reports..........6 DOH Provides HCA with Updates on 2017 LHCSA Stat Report Process...........6 LTHHCPs, Providers Tapped for Potential CFCO Program.............................7 HCA Welcomes New Program and Research Director Lauren Ford..............8 Members-Only Webinar on Revised “Call-in Pay” Regs: Dec. 18...................9

Continuing the Momentum on National Home Care Observances, Connections We may’ve turned the page on National Home Care Month in November, but we need to continue building on the incredible momentum that members put forward over the past several weeks.

See MOMENTUM p. 5

HCA Tapped for National State Home Care Forum Executive Committee..................10 CMS Provides Hospice Updates.............................................................................10 RAC Issues Pertaining to Hospice..........................................................................11 OMIG Posts Webinar on Compliance Certification Process Updates......................11 HCA Attends Capital District North Country HEPC Meeting......................................12 LawTalk: Reasonable Compensation for Executives in Not-for-profit Corps..............14 PHHPC Establishment and Project Review Committee Meets.................................15 Important Upcoming Deadlines............................................................................16 Workers’ Compensation Appeal Forms Revised....................................................17 OPWDD Releases FAQs on Managed Care..............................................................17 Health Resources.................................................................................................18

The Situation Report: the Home Care Association of New York State PDGM from p. 1 The meetings were led by HCA Vice President for Finance and Management Patrick Conole and our federal lobbyist, Brett Heimov of Envision Strategies. They coincided with a national push on this series of bills from the National Association for Home Care and Hospice (NAHC), the Council of State Home Care Associations, the Partnership for Quality Home Healthcare, and other state associations.

HCA has summarized the bills for you previously. Please see our briefing paper, which was shared with all of the Delegation offices, outlining HCA’s arguments and the rationale for the bills here: https://hca-nys.org/wp-content/uploads/2018/11/Co-Sponsor-andPass-Bipartisan-Bills-to-Protect-Medicare-Home-HealthReimbursement.pdf.

Under PDGM, the U.S. Centers for Medicare and Medicaid Services (CMS) is assuming that providers will change their behavior (through coding and other means) as a way of receiving higher payments than are otherwise intended by the new PDGM payment methodology, set to go into effect in 2020.

This cut is called a “behavioral adjustment.” It would be levied at the onset of PDGM, and it is built on the assumption that providers will change their behavior in the future rather than CMS basing payment adjustments on observed, empirical evidence. This cut affects providers regardless of whether they are expected to maintain or exceed their current financial performance under PDGM as compared to the present Home Health Prospective Payment System (HHPPS).

The three bills under consideration (H.R. 6932, S.3545 and S.3458) would require CMS to institute rate adjustments based on observed evidence, not conjecture. They would also limit rate adjustments to no greater than 2 percent per year. (Under the proposed rule for PDGM, CMS called for a “behavioral assumption” rate cut of 6.42 percent, though the final rule does not specify a number.)

Why Now? With the midterm elections settled, Congress is finishing up on end-of-year priorities before a new Congress commences in January (also known as the “lame duck” session). At this time, the priorities for advocacy need to be focused on those items that could possibly

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 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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Continued from previous page make their way into a final omnibus package by year’s end, and these PDGM-related bills are one such priority.

During last week’s meetings, the New York Delegation offices were very receptive to our arguments, with some offices signaling that they would be signing on as co-sponsors to the PDGM bills. This co-sponsorship will help further build on the bills’ momentum toward passage as NAHC, the Partnership, the Council and other state associations similarly weigh in.

Who We Met With HCA Vice President Patrick Conole meets with Molly Carey, J.D., Legislative Director for Rep. Sean Patrick Maloney in Washington last week.

HCA met with offices of the following members who are expected to assume leadership positions or who are current or expected members of the House Ways & Means, Energy & Commerce and Appropriations Committees, which have jurisdiction on Medicare issues: Rep. Adriano Espaillat, Rep. Paul Tonko, Rep. Tom Reed, Rep. Brian Higgins, Rep. Sean Patrick Maloney, Rep. Grace Meng, and Rep. Eliot Engel.

HCA will keep you apprised of all developments on this national advocacy push.

HIRING: RN / Staff Development Education Supervisor – Home Health Full Time 9 am-5 pm Driven to Be the Best.

NYU Winthrop Hospital’s Home Health Agency ranks as a top-performing US Home Health Agency! Come join our stellar team of nurses, therapy professionals and social workers who provide home health care to our maternal, child and adult population.

We have an exceptional opportunity for a Staff Development Education Supervisor to be responsible for home health staff education, development and professional growth, including orientation program (didactic and practical components).

Collaborating with the Director of Quality Management/Staff Development and the departments’ management team, you will identify, develop and plan appropriate staff development programs to support agency needs to provide optimum patient outcomes. Working with the Administrator and the Director of Patient Services, you will research, coordinate and establish new programs for the agency.

We require:     

NYS Registered Nurse License BSN with 2 years’ experience in Education in a Certified home care agency; Master’s degree in Nursing, preferred 2-3 years clinical nursing practice 2 years’ community health nursing Good communication and basic computer skills, knowledge of agency clinical and business functions

To apply for our Staff Development Education Supervisor position, visit https://jobs.winthrop.org/job/8799934/registerednurse-staff-development-supervisor-home-care-mineola-ny/ An EOE m/f/d/v.

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SURVEY from p. 1 staff in various roles (this is why we encourage you to print a PDF of the survey first, have relevant staff fill-in the answers, and then input the data online or e-mail/fax the PDF according to the instructions in the survey link below).

Your aggregate results, coupled with other data analysis, will culminate in our centerpiece home care, MLTC and hospice financial and program trend report. This report will be presented to policymakers and the media in early 2019, coinciding with our advocacy agenda.

The survey can be completed online at https://www.surveymonkey.com/r/201819industrysurvey. We ask for your responses as soon as possible, but no later than January 7.

Our survey is directed at HCA’s home care provider members, but we are supplementing this effort by also separately analyzing other reports that provide a picture of the financial experiences of hospices and MLTC plans, including cost reports, statistical reports and Medicaid Managed Care Operating Reports.

No agency-specific (just aggregate) data will be shared, and we ask that you complete as much of the survey as possible to the best of your ability.

All the information you need is on the survey start page; but if you have any questions about this process, do not hesitate to contact HCA’s Communications Director Roger Noyes at rnoyes@hcanys.org.

To see last year’s report, based on member survey responses in 2017 to 2018, please visit https://hca-nys.org/ policy-positions/home-care-hospice-and-managed-long-term-care-financial-and-program-trends-2018.

How Can Home Care Garner a Winning Edge in New Models of Care?

Learn how at the Northeast Home Health Leadership Summit; register by the end of today for the early-bird deadline A wave of new federal care models has cascaded through the health care system in the past decade. Many of these multi-billion-dollar projects flow from one source: the Centers for Medicare and Medicaid Innovation (CMMI) at the U.S. Centers for Medicare and Medicaid Services (CMS).

The Northeast Home Health Leadership Summit on January 22-24 in Boston is thrilled to present CMMI’s Division Director for Health Care Payment Models, Claire Schreiber, who will discuss the intersection of home health with this patchwork of CMMI initiatives.

These initiatives include new models that you have surely heard about, others that you may be participating in – and all of which you need information on: Accountable Care Organizations (ACOs), the Bundled Payments for Care Improvement (BPCI) initiative, Value Based Purchasing (VBP), and the Comprehensive Care for Joint Replacement Model (CJR).

Schreiber will provide a briefing on current and future plans for home health’s participation in upcoming CMMI projects. She’ll also share current results from VBP and the Medicare Care Choices (MCC) models, highlighting the best opportunity areas for home health to help you prioritize projects that are most suitable for your organization.

Register today at http://nehomehealthsummit.com/registration, or visit the conference website (http:// nehomehealthsummit.com/) to read the full brochure, see our sponsors, get hotel information, and more.

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MOMENTUM from p. 1 Whether or not you marked the occasion in a definitive way, we consider November as a launching point for a year-long effort to help raise the profile of home care and hospice, while connecting with lawmakers and the public about the services you provide.

In this vein, HCA today sent a letter to all members of the State Legislature marking the recent observance of National Home Care Month and further reinforcing HCA as a resource for new and returning state legislators.

We also flagged their attention to an upcoming Home Care 101 session that HCA is planning in January for legislative offices. (A formal invite will be delivered soon.) The session is designed for legislative offices to learn the basics about home care operations, issue areas, and ways HCA can be a resource for constituents or in the legislative process. Look for more details on this session soon. (You can read the full letter from HCA President Al Cardillo here: https://hca-nys.org/wpcontent/uploads/2018/12/HCAPresidentAlCardilloLettertoLegislature.pdf.)

Throughout the past several weeks, HCA has also worked one-on-one with several legislative offices who reached out to us after we circulated a publication about veterans in home care. This outreach resulted in a citation recognizing four HCA members in Senator John DeFrancisco’s district, along with other recognition efforts that continue to take shape.

Our veterans’ recognition work was also shared nationally by the National Association for Home Care and Hospice and the Visiting Nurse Associations of America in their member publications last week, further raising the profile of HCA’s New York members.

HCA also continues to work with the New York State Office for the Aging (NYSOFA) on ways of reaching their service networks and area offices for the aging about home care, including through a recent column written by HCA President Al Cardillo and shared last week with NYSOFA for distribution across its various distribution channels. You can read it here: https://tinyurl.com/ y7efrlqd.

NYSOFA is additionally working to finalize a public service announcement featuring Mr. Cardillo and NYSOFA Director Greg Olsen discussing sepsis and the specific risks/threat that this condition poses for elder populations. This video public service announcement yet further links up recognition of home care with public education about the work providers are doing to save lives and prevent health care catastrophes.

Recent posts about our National Home Care Month celebrations are on a dedicated site: www.nationalhomecaremonth.com. We look forward to engaging you for further work in the months ahead on public relations and legislative connections about your services, staff, patients and role in the health care continuum.

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DOH Activates 2017 CHHA & LTHHCP Statistical Report and 2017 Hospice Cost and Utilization Report The state has activated the 2017 statistical report for Certified Home Health Agencies (CHHAs) and Long Term Home Health Care Programs (LTHHCPs) as well as the 2017 Cost and Utilization Report for Hospices.

A Dear Administrator Letter (DAL) announcing the postings to the Health Commerce System (HCS) is available at https://hca-nys.org/wp-content/uploads/2018/12/DAL_CHHA-Statistical-Report_2017_112818.pdf.

Each of the reports will be activated and available for completion from December 3 through February 1, 2019. After February 1, 2019, these reports will no longer be available on the HCS. DOH collects qualitative and quantitative information in these reports to make policy decisions regarding the home care and hospice industry.

All CHHAs, LTHHCPs, and Hospices are required to complete and submit the 2017 reports. Failure to submit all required information in the appropriate format will subject the agency or provider to an enforcement action under Section 12 of the Public Health Law (PHL) resulting in the agency being liable for civil penalties of violations of Article 36 (for CHHAs and LTHHCPs) or Article 40 (for Hospice) of the PHL and New York State Medical Facilities Code.

Hospice and home care administrators should be aware that the DOH’s ability to make an affirmative statement to your agency’s character and competence will be negatively impacted in the event of an enforcement action for failure to submit. Furthermore, any pending certificate of need applications will not be processed for agencies determined to be delinquent for this submission.

DOH and HCA encourage home care and hospice providers to enter and submit data as early as possible.

Providers that wait until the last week to enter data may encounter extended system delays on the HCS and wait times for support due to limited system and personnel resources.

Attached to DOH’s DAL are instructions for completing and submitting the statistical reports.

HCA members with questions on the Statistical Reports can e-mail DOH at HCStatRpts@health.state.ny.us.

DOH Provides HCA with Updates on 2017 LHCSA Statistical Report Process, Status On November 27, the state Department of Health (DOH) hosted a conference call for HCA and other home care and assisted living associations to discuss the status of the 2017 LHCSA Statistical Report process thus far.

This year, the Department revamped the 2017 Statistical Report and added a registration component for all LHCSAs as per provisions in the enacted state budget. DOH indicated that it intends to post information on those LHCSAs that have completed the registration process.

As of Tuesday, approximately 1,200 LHCSA Statistical Reports had been filed with about 300 Statistical Reports left unfiled. The Department said it has completed phone calls to approximately half of the non-submitters. Their

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outreach will continue until all non-responders have been contacted. HCA is also in possession of the list of non-submitters and has conducted outreach to those organizations to ensure compliance.

During the call, DOH asked for suggestions from the associations in an effort to make next year’s process more defined. HCA suggested that the state develop a Frequently Asked Questions (FAQs) document that is inclusive of all of the Department’s clarifications as opposed to multiple FAQ documents being posted at different times.

In addition, in response to HCA’s suggestion, DOH indicated that next year’s Report will allow for providers to supply exact rate information in contrast to this year where providers were instructed to round down when reporting monetary values. DOH also agreed to our request that it reconvene the LHCSA Statistical Workgroup so that it could relay any concerns about this year’s Statistical Report and begin conversations about the 2018 LHCSA Statistical Report process.

HCA also recommended that LHCSAs with multiple branches/sites be allowed to submit only one Statistical Report instead of one report for each site, but DOH said it wants one report for each site as the area and population served by each site differs and this information is needed.

HCA thanked DOH for its repeated communications to LHCSAs about the need for completion of the Statistical Report and for working with the associations to ensure a high completion rate.

The 2017 LHCSA Statistical Report was originally due Friday, November 16 but can still be submitted by December 31, 2018 (and face penalties). For those entities that do not submit the Report, the state has the authority to implement the following penalties: •

$500 if not submitted by November 16; another $500 if not submitted by December 1; and another $500 if not submitted by January 1, 2019.

•

Any LHCSA that has not submitted the Statistical Report by January 1, which includes the new registration process, will not be able to operate or receive reimbursement from any source.

LHCSAs are encouraged to file their Statistical Reports as soon as possible to avoid additional penalties. If you are unsure if your agency submitted a Statistical Report, or have any questions about the report, please contact Andrew Koski at akoski@hcanys.org or Alyssa Lovelace at alovelace@hcanys.org.

LTHHCPs, Providers Tapped for Potential CFCO Program DOH exploring HCA recommendation to assist MLTCs by tapping waiver providers for CFCO The state Department of Health (DOH) has circulated a November 28 letter and survey to Long Term Home Health Care Program (LTHHCP) providers to gauge their interest and readiness to provide the new Community First Choice Option (CFCO) as partners to managed care and local social services districts.

CFCO is a federal option program that New York State agreed to implement as a waiver service package similar to a portion of those services that had been offered under the LTHHCP. Several years ago, the Department elected to pursue the CFCO option, entered into an agreement with the federal government to provide it, and has been exploring approaches to implement it.

Continued on next page

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To date, DOH’s approach on CFCO has sought to directly infuse it into the managed long term care (MLTC) and mainstream managed care Organization (MCO) benefit package, cost structure and operating procedures.

As concerns have mounted about this approach, HCA has sought to recommend an alternative route that would enable the state and managed care plans to tap existing resources, relieve MLTCs/MCOs of what has otherwise been a bewildering and incompatible mandate, and help fulfill goals of the program.

Serving on the CFCO/MLTC/MCO steering committee, HCA President Al Cardillo offered a proposal, now conceptually embraced by DOH, whereby plans could opt to deliver services under consolidated “CFCO providers.” Under this concept, providers would put the CFCO package together and act as a consolidated, contracted partner to MLTCs and MCOs to provide them. This would be distinct from the current model which has sought to mandate that the MLTCs and MCOs directly locate, broker, negotiate and arrange for each discrete CFCO service, in addition to the MLTC/MCO standard benefit package. MLTCs have repeatedly voiced their extensive concerns about nearly every element of the DOH model. HCA has echoed those concerns and received affirmation from member MLTCs to put our new concept on the table.

HCA encourages LTHHCPs to consider the possibilities outlined in the DOH letter for your agency, MLTC/ MCO partners, patients and community. The letter and survey are on the Health Commerce System.

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

HCA Welcomes New Program and Research Director Lauren Ford

By HCA President Al Cardillo On behalf of the entire association, I’m thrilled to welcome Lauren Ford in the new HCA position of Director of Program Research, Development and Policy. Lauren joins us today, December 3.

Lauren will be spearheading this new critical HCA function, elevating the incorporation of data, evidencebased research and program outcomes in support of advocacy, member service, education, program development and policy. She will also be working directly to lead and/or co-lead an array of HCA program areas.

Lauren brings outstanding personal, professional and leadership qualities and experience to HCA. She comes to HCA from her most recent position managing care coordination functions for a regional comprehensive clinical management program. She previously spent seven years working with HCA member Living Resources Corporation, where she most recently served as the Assistant Director of Residential Services. She has a Master of Social Work (MSW) degree from the University at Albany where she was the honored recipient of the Stephanie Wacholder Endowed Scholarship and the Frank Filippone Hillside Scholarship in 2017 and 2018.

We look forward to the critical enhancement she will add to HCA and the membership in this new role. You can connect with her directly at lford@hcanys.org.

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Free Members-Only Webinar on DOL’s Revised “Call-in Pay” Regulations: Dec. 18 As reported in an alert last week, the state Department of Labor (DOL) will be revising its proposed employee scheduling (call-in pay) regulations on December 12, 2018, at which time the 30-day comment period begins. At the close of the comment period, DOL will evaluate the submitted comments and pursue next steps.

HCA is holding a members-only webinar on December 18 from 11 a.m. to noon outlining the newly proposed rules following their posting. HCA expects multiple changes in the upcoming December version of the proposed rule and this webinar will compare and contrast those updates or changes with the current proposal already posted by DOL. You must register in advance by completing the online form at https://www.surveymonkey.com/r/ callinpaywebinar. HCA will send you the webinar information in advance of December 18.

More background This upcoming revision to the proposed rule will follow the initial round of comments and testimony provided by HCA and others in response to the first iteration of the proposed regulations that DOL released on November 22, 2017.

As HCA informed members through numerous programs, the current iteration of the proposed rule would require employers to pay their employees for a certain number of additional hours if: shifts were not scheduled 14 days in advance; shifts were canceled within 72 hours of the scheduled start time; employees were required to be available to report to work; and more.

Don’t miss this members-only opportunity to learn how the upcoming December 12 proposed rule will affect home care providers. The program will be presented by Benjamin Wilkinson, Principal at Hinman Straub, HCA’s contracted government affairs firm.

About the Presenter Benjamin Wilkinson joined Hinman Straub in January of 2016. Mr. Wilkinson represents clients in addressing issues that arise in and out of the workplace and in litigation matters. Prior to joining Hinman Straub, Mr. Wilkinson was a litigation associate at a downstate law firm, concentrating on employment law, creditors’ rights and collection, and general civil litigation in state and federal courts.

He has represented clients in administrative matters before the Equal Employment Opportunity Commission (EEOC) and NYS Division of Human Rights (NYSDHR) and federal and state courts regarding claims of alleged unlawful employment actions. In addition, Mr. Wilkinson has litigated a variety of civil matters including personal injury, premise liability, foreclosure, and commercial litigation.

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HCA Tapped for National State Home Care Forum Executive Committee HCA President Al Cardillo has been asked to serve as a member of the Executive Committee of the National Forum of State Home Care Associations.

The Forum is comprised of the Executives of all state home care associations across the country, and operates in conjunction with the National Association for Home Care and Hospice (NAHC).

With the pressing federal challenges and opportunities to the field, HCA’s close work with the Forum provides a critical voice in this national arena. It also opens further channels for insight back into our membership and our state’s home care and hospice system from the experiences and expertise of peer associations and fellow Executive Committee members.

“With so much at stake, and so much for home care that needs to be paved at the federal level,” Mr. Cardillo said that he is “privileged and eager to accept this role on behalf of HCA and New York.”

Jane Kelly is the Chair of this National Forum. She is also Executive Director of the Kansas Home Care and Hospice Association, and a member of the NAHC Board of Directors.

CMS Provides Hospice Updates The U.S. Centers for Medicare and Medicaid Services (CMS) has issued the following hospice updates.

Hospice Item Set (HIS) and CAHPS Provider Preview Reports Available on December 1 CMS reminds providers that HIS and Consumer Assessment of Healthcare Providers and Systems (CAHPS) Provider Preview Reports were available on December 1, 2018. Providers will have 30 days (December 1, 2018 through January 2, 2019) to review their data. Requests for CMS review of HIS or CAHPS data must be submitted by 11:59 p.m. PST on day 30 (January 2, 2019) of the preview period.

CAHPS Hospice Survey State Scores Available The CAHPS Hospice Survey State Score document for the upcoming public reporting period (first quarter of 2016 through the fourth quarter of 2017) is available on the CMS CAHPS Survey website at: https:// www.hospicecahpssurvey.org/en/scoring-and-analysis/.

Registration Open for 12/13 Webinar on Updates to Public Reporting in Fiscal Year 2019: Hospice Comprehensive Assessment Measure and Data Correction Deadlines CMS will host its next training event on December 13, 2018 from 1 to 2:30 p.m. This two-part webinar will cover two different topics. Part one will focus on the “Comprehensive Assessment at Admission” composite process measure (National Quality Forum No. 3235), including the background of this measure, how this measure is calculated, and how providers can use their Certification and Survey Provider Enhanced Reporting Quality Measure Reports (CASPER QM Reports) to understand their performance on this measure. Part two of the training will review the 4.5-month data correction deadline for public reporting policy that was finalized in the fiscal year 2019 final payment rule (83 FR 38622, see pages 38638-38640), including how this new policy change will be implemented and its implications. (Register at https://engage.vevent.com/ index.jsp?eid=3536&seid=1296).

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Recovery Audit Contractor (RAC) Issues Pertaining to Hospice The U.S. Centers for Medicare and Medicaid Services (CMS) recently posted the following Recovery Audit Contractor (RAC) issues pertaining to hospices and the patients they serve: 

Physician Services During Hospice Period;



Durable Medical Equipment (DME) While in Hospice; and



Outpatient Hospice-Related Services

CMS’s RAC Contractor is Performant. Its RAC webpage shows all active issues and further information about the RAC audits. (See: https://performantrac.com/audit-regions/region-5/page/4/ ?order=asc&filter=provider_type.)

Each of the three issues above looks at non-hospice providers and whether the reason for the service is related to the hospice diagnosis. Under the Medicare Hospice Benefit, services related to a hospice terminal diagnosis provided during a hospice period are included in the hospice payment and are not paid separately.

Even though hospice providers are not directly part of these approved RAC issues, these areas affect the relationships with possible partner entities, and it is possible that a RAC audit could result in a non-hospice provider questioning a hospice as to whether it is paying for all of the services it should be paying for under the Medicare Hospice Benefit or even to ask the hospice for money that the provider has to pay back as part of the RAC audit findings.

OMIG Posts Webinar on Updates to the 2018 Compliance Certification Process Last week, the state Office of the Medicaid Inspector General (OMIG) posted a webinar entitled OMIG’s Certification Process, which provides updates to the Social Services Law Section 363-d and 18 NYCRR Part 521 compliance program certification form (SSL Certification) as well as tips for completing the 2018 form.

This webinar can be accessed at https://omig.ny.gov/information/webinars.

The updated state Certification form and Frequently Asked Questions document are available at: https://omig.ny.gov/ssl-certification.

State law requires that health care providers certify annually (in December) that they have adopted, implemented, and maintain an effective compliance program that meets eight elements. These elements are reviewed at https://omig.ny.gov/images/stories/compliance/compliance_program_review_guidance.pdf and https://omig.ny.gov/images/stories/compliance/compliance_program_self_assessment_form_021215.doc.

As referenced in OMIG’s 2018-2019 Work Plan, providers (who are already enrolled in Medicaid) subject to the mandatory compliance program obligation are required to complete an annual certification using their Provider Identification Numbers (Provider IDs) rather than their Federal Employer Identification Numbers (FEINs). Agencies without Provider IDs will be advised to use their FEIN. Continued on next page

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OMIG recommends that providers test the operation of their compliance program now and make any adjustments necessary so that the Medicaid provider is prepared to certify compliance with the state requirements.

Applicable providers that fail to certify in December (or fail to adopt, implement and maintain a required compliance program) may be considered to have engaged in an unacceptable practice under the Medicaid program, and may be subject to potential administrative actions.

Federal Compliance Requirement In addition, entities that receive at least $5 million in Medicaid payments during a federal fiscal year must submit a certification form showing compliance with the federal Deficit Reduction Act (DRA) of 2005. (The amounts an individual or organization may receive through its contract with a Medicaid managed care organization should not be counted when calculating the $5 million in payments.)

By law, such entities must have written policies and procedures informing their employees, contractors and agents about federal and state false claim acts and whistleblower protections.

More information on the DRA certification is at https://omig.ny.gov/images/stories/provider_compliance/ dra_faqs.pdf.

Any questions can be directed to OMIG’s Bureau of Compliance at (518) 408-0401 or compliance@omig.ny.gov.

HCA Attends Capital District North Country HEPC Meeting in Saranac Lake; Emergency Preparedness Toolkit Available Online Last Monday, HCA’s Public Policy Director Alyssa Lovelace attended the second quarter Capital District/ North County Health Emergency Preparedness Coalition (HEPC) meeting with representatives from the state Department of Health Office of Emergency Preparedness (OHEP), local and state emergency preparedness officials and coordinators, as well as other health and home care industry stakeholders.

The meeting began with a briefing on the state’s recent hospital HEPC Coalition Surge Test (CST). During the briefing, Pat Anders of OHEP discussed the outcomes and importance of the exercises. Throughout the discussion, participants suggested additional stakeholder and community involvement in order to better meet the state’s deliverables and to ensure compliance with emergency preparedness requirements across health care sectors. Providers can anticipate another CST in the first quarter of 2019.

For this upcoming CST, agency contacts in the Health Commerce System (HCS) will receive the drill approximately 90 minutes prior to the drill being activated, and they will have 60 to 90 minutes to complete the exercise. HCA will alert members once drills have been activated.

Later in the meeting, Carol Killian of OHEP provided an overview of emPOWER data supplied by the U.S. Department of Health and Human Services (HHS). The HHS emPOWER Map 3.0 provides statistics related to electricity-dependent Medicare individuals in each state, territory, county, and ZIP code. HEPC meeting participants discussed how this data could be used in determining how to best meet the needs of electricity-

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dependent Medicare and non-Medicare beneficiaries residing in the community who would need assistance during an emergency.

Throughout the meeting, HCA discussed the importance of emergency preparedness strategies as it relates to individuals utilizing home care and hospice services. HCA, in conjunction with the New York State Association of Health Care Providers (HCP) and OHEP, recently developed an Emergency Preparedness Toolkit, which was released earlier this fall. We stressed that the toolkit could be used by home health agencies, individuals and their families when preparing for an emergency. The toolkit is available at https://issuu.com/hcanys/docs/emergency_preparedness_toolkit?e=0.

Upcoming HEPC Meetings HCA encourages representatives from home care, hospice, and managed care organizations to participate in their regional HEPC meetings.

For a full list of HEPC meetings in your area, see https://www.urmc.rochester.edu/emergency-preparedness/ calendar/nys-hepc-master-calendar.aspx.

Below is a list of upcoming HEPC meetings:

HEPC Meeting

Date

Lower Hudson Valley

December 5, 2018

Long Island

December 6, 2018

Finger Lakes Region Finger Lakes Northern Area Finger Lakes Eastern Area Finger Lakes Southern Area Western Region (WR) WNY Northern Area WR HEPC WNY Southern Area WNY Urban Area WNY Urban Area WNY Eastern Area

January 7, 2019 February 11, 2019 February 25, 2019

January 14, 2019 January 21, 2019 February 1, 2019 February 8, 2019 February 11, 2019 February 15, 2019

Central New York (CNY) Region HEPC Meetings

CNY Eastern Region CNY Northern Region CNY Western Region CNY Southern Region CNY Regional

December 3, 2018 December 4, 2018 December 5, 2018 December 6, 2018 February 20, 2019

HCA and HCP work together under a grant from DOH OHEP with all home care and hospice providers to support their roles in emergency preparedness, including participating in HEPC meetings across the state.

Continued on next page

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Continued from previous page Is Your Agency’s Contact Information Updated in the Health Commerce System?

As a reminder, home care and hospice providers are required by law to keep their HCS contact information upto-date. The Department of Health frequently populates the HCS with time-sensitive information related to emergency preparedness drills and exercises, as well as real-time information related to storm emergencies and other provider-specific information. To learn more about these requirements, please review the Department’s HCS Dear Administrator Letter at https://hca-nys.org/wp-content/uploads/2018/06/ DAL_HCS_Requirements_020316.pdf.

December Aware Prepare Now Available In other emergency preparedness news, the December 2018 issue of the state’s Aware Prepare update is now available online. The Update contains upcoming preparedness trainings, such as webcasts, webinars and inperson trainings, as well as archived exercises and on-demand e-learning. You can access this month’s Aware Prepare update at https://hca-nys.org/wp-content/uploads/2018/12/2018_December_AP.pdf.

LawTalk: Reasonable Compensation for Executives in Not-for-profit Corporations

By Frank Fanshawe, Principal and Ashley Solowan, Law Graduate, Jackson Lewis P.C. Many organizations are familiar with New York State’s Executive Order No. 38 regulations, which generally limit the amount of compensation an organization can pay its executives if the organization derives a certain amount of its funds, directly or indirectly, from the state. (See https://executiveorder38.ny.gov/.) There has been much focus on the state regulations, including high profile litigation and appeals going all the way up to the New York Court of Appeals. But it is important to remember that federal laws and regulations also govern how tax-exempt organizations are permitted to compensate their executives.

Tax-exempt organizations, such as some home health agencies, MLTCs, and hospices, are limited by federal law and regulations in the amount of compensation they can pay their executives (e.g. individuals who run/ control the organization). Tax-exempt organizations are allowed to pay executives “reasonable and fair” compensation for their work, although there is no definitive way to measure this.

However, the Internal Revenue Service (IRS) has outlined three requirements that, if met, would create at least a rebuttable presumption of “reasonable and fair” compensation: in other words, the compensation would be assumed “reasonable and fair” under these three conditions unless evidence is presented by the IRS to prove otherwise. These three requirements are: 1. The compensation arrangement must be approved as reasonable and fair in advance by an authorized body of the applicable tax-exempt organization, which is composed of individuals who do not have a conflict of interest concerning the transaction; 2. Prior to making its determination, the authorized body obtained and relied upon appropriate comparability data that demonstrates the compensation is reasonable and fair; and 3. The authorized body adequately and timely documented the basis for its determination concurrently with making that determination.

Continued on next page

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Continued from previous page The IRS has further detailed what the authorized body should include in its documentation when authorizing an executive compensation arrangement. The authorized body should include the terms of the transaction, the date of its approval, the members of the authorized body present during the debate, the vote on the transaction, the comparability data obtained and relied upon, any conflicts of interest of the authorized body, and documentation of the basis for the determination. Appropriate documentation of these issues is an important step toward meeting the rebuttable presumption.

Complying with the IRS requirements avails the tax-exempt organization of the rebuttable presumption – that the executive compensation is reasonable and fair. The IRS may only refute the presumption of reasonableness if it develops sufficient contrary evidence to rebut the value of the data relied upon by the authorized body.

If a tax-exempt organization does not qualify for the rebuttable presumption, it still has the ability to prove that the executive compensation was fair and reasonable. However, the burden shifts to the tax-exempt organization to prove this. The IRS will review the compensation on a facts and circumstances analysis and may issue sanctions if the compensation is found to be excessive.

Before a tax-exempt organization approves an executive compensation arrangement, it should make sure the arrangement can withstand scrutiny by the IRS. Qualifying for the rebuttable presumption is an important step in protecting your organization in the event of an IRS challenge.

LawTalk is a series of monthly articles written by attorneys at Jackson Lewis, the firm for HCA’s counsel.

Please note that HCA LawTalk articles are for general, informational purposes, are not legal “advice,” and do not create an 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.

PHHPC Establishment and Project Review Committee Meets The Public Health and Health Planning Council (PHHPC) Establishment and Project Review Committee met on November 29 and took action on a series of applications which will now go to the full PHHPC for consideration at its December 13 meeting.

The applications include:

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

One Certified Home Health Agency (CHHA) to merge with another CHHA;



One CHHA for a 3-year extension to its limited life operating certification;



One CHHA to establish one entity as its parent and another entity as its grandparent;



One hospice to merge with another hospice;



One Licensed Home Care Services Agency (LHCSA) for a change in ownership (under moratorium exception for applications that address a serious concern such as lack of access to home care services in a geographic area or special needs services); Continued on next page

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Continued from previous page 

Two entities to become LHCSAs affiliated with an Assisted Living Program (ALP); and



One LHCSA affiliated with an ALP for a change in ownership.

The agenda, and supporting documents, are at https://www.health.ny.gov/facilities/ public_health_and_health_planning_council/meetings/2018-11-29/.

All meetings of the PHHPC and its committees can be viewed via webcast at https://www.health.ny.gov/events/webcasts/.

Upcoming Deadlines and Due Dates

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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/NewͲMedicareͲCard/index.html

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

October 15 to www.medicare.gov December 7, 2018

2017 LHCSA Statistical Report Due

LHCSAs will face fines if submitted between November 16, 2018 and December 31, 2018

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

LHCSA Registration Process

Must be submitted with LHCSA Statistical Report; if not submitted by November 16, 2018, agency will incur fines

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

MLTC Enrollment LockͲIn Starts

December 1, 2018

https://www.health.ny.gov/health_care/medicaid/program/update/201 8/2018Ͳ06.htm#mltc

OASISͲD for Certified Home Health Agencies

January 1, 2019

OASISͲD Guidance Manual: https://www.cms.gov/Medicare/QualityͲInitiativesͲPatientͲAssessmentͲ Instruments/HomeHealthQualityInits/HHQIOASISUserManual.html

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Workers’ Compensation Appeal Forms Revised The Workers’ Compensation Board has revised certain appeal forms.

These include the Application for Board Review (Form RB-89), Rebuttal of Application for Board Review (Form RB-89.1), Application for Reconsideration/Full Board Review (Form RB-89.2), and Rebuttal of Application for Reconsideration/Full Board Review (Form RB-89.3) to add clarifying information to the instructions.

The Board has also prepared a Guidance Document on the Proper Application of Board Rule 300.13 (http:// www.wcb.ny.gov/content/main/forms/300.13_Guidance.pdf). The document sets forth the existing rules and the correct completion of Items 11 through 15 on Form RB-89, and Items 13 through 15 on Form RB89.2. A companion document, titled Supplement: Decisional Examples (http://www.wcb.ny.gov/content/ main/forms/Supplement_Decisional_Examples.pdf), provides examples, item by item, as to how these rules are applied.

The Board will continue to accept the prior version of the form (01-18) until February 1, 2019. After that date, any prior version of the application form will be subject to a denial of review.

More information is at http://www.wcb.ny.gov/content/main/SubjectNos/sn046_1119.jsp.

OPWDD Releases FAQs on Managed Care The state Office for People With Developmental Disabilities (OPWDD) has released Frequently Asked Questions (FAQs) about the transition to managed care.

The FAQs are at https://hca-nys.org/wp-content/uploads/2018/11/Frequently-Asked-Questions.pdf.

Some highlights include:

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

In January 2019, “early adopters” will begin providing managed care of only medical and behavioral health needs for people with developmental disabilities. Early adopters are provider-led managed care plans that provide non-OPWDD long term support services today and are now going through the application process to become a certified mainstream managed care plan.



In August 2019, voluntary managed care for all services, including those funded by OPWDD, will begin to be offered in areas of the state where early adopters are approved to coordinate care.



Beginning in 2021, everyone receiving OPWDD services will need to choose a managed care organization to manage their supports.



Individuals will choose a Managed Care Organization and Care Coordination Organization (CCO).

CCOs are entities formed by OPWDD providers paid to provide care management for individuals’

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developmental disability, medical and behavioral health needs based on their Life Plan. Managed Care Organizations work with CCOs to arrange services through their network of providers. 

One of the reasons that OPWDD is utilizing CCOs is to comply with federal requirements that the coordination of a person’s supports be “conflict free” or separate from the direct provision of services.

More information on managed care for individuals in the OPWDD system is at https://opwdd.ny.gov/opwdd_services_supports/managed_care.

Health Resources 

“Targeted Probe and Educate (Transmittal 2207)” by the U.S. Centers for Medicare and Medicaid Services https://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/2018-Transmittals-Items/ R2207OTN.html?DLPage=1&DLEntries=10&DLSort=1&DLSortDir=descending

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

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