January 7, 2019 Edition of The Situation Report

AHHA TRAINING PROGRAMS IMPLEMENTED

ICYMI

HCA BOARD APPLICATION

LAWTALK

The state has issued application and operational requirements for training programs to begin implementing the advanced home health aide law.

Since HCA’s last edition of The Situation Report, on Dec. 17, we’ve provided some important e-mail updates summarized here in brief.

HCA invites candidates to apply for seats on HCA’s Board of Directors.

Our monthly LawTalk column focuses on employer considerations regarding class-action waivers in employee arbitration agreements, now that the Supreme Court has upheld the practice.

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Your Source for HOME CARE News, Policy and Advocacy

UPCOMING PROGRAMS Home and Community Care Services Open Forum for State Legislators Jan. 8, 2019 (Albany) 2019 Northeast Home Health Leadership Summit Jan. 22-24, 2019 (Boston) HCA PAC Reception and State Advocacy Program Feb. 11, 2019 (PAC Reception) February 12, 2019 (Advocacy Day) Albany WCEI 5-Day Onsite Skin and Wound Management Course March 4-8, 2019 (Herkimer, NY)

Vol. 4, Issue 1| January 7, 2019

State Budget, Advocacy Season in Full Swing: Your Participation is Vital!

With the executive state budget expected for release sometime during the week of January 21, HCA has been engaging in proactive outreach to key legislative and executive offices on our priorities for 2019. (See related story below.)

Our near-term state advocacy calendar also includes several upcoming events that we want the membership to be aware of, so you can plan for your participation on the grassroots level and anticipate key developments in the process.

See BUDGET p. 2

HCA Presses for Urgent Home Care, MLTC Financing Of paramount concern in HCA’s advocacy and budget preparatory discussions with the state has been the financing of home care agencies and managed long term care plans (MLTC).

With the onset of the minimum wage (MW) increase on December 31 and the steepening trend of imperiled providers and plans, HCA has been doubling down on the urgency for See FINANCING p. 4

INSIDE State Budget, Advocacy Season in Full Swing...............................................1 HCA Presses for Urgent Home Care, MLTC Financing.......................................1 Member Hiring Announcement....................................................................3 New Development on 24-Hour/Live-In Care..................................................5 Final Advanced Aide Training Program Info, Materials Now Available.............5 ICYMI: Recent HCA Alerts on Flu Mask Requirement, Andryeyeva Case, LHCSA Registration Rule & Medicaid Billing..................................................6 January Aware Prepare Now Available..........................................................7 HCA Sepsis Initiative Continues to Draw Broad Attention............................8 DOH Posts Lists of Registered LHCSAs..........................................................9

Final OASIS-D Guidance Manual Now Available............................................9 Open Call for Candidates to HCA’s Board of Directors.......................................9 CMS Makes Hospice Provider Preview Reports Available..............................10 Upcoming Deadlines and Due Dates..............................................................11 OIG Posts Updated Work Plan........................................................................12 CMS Issues RFI on Accrediting Organizations...............................................12 Paid Family Leave Changes for 2019..............................................................13 CMS Extends Use of Hospice Contracted Nursing Staff......................................14 January CAHPS Newsletter Posted................................................................14 Cybersecurity Guidelines Issued..................................................................15 LawTalk: Managing The Risk of Employee Class Actions...................................15 Health Resources.........................................................................................16

The Situation Report: the Home Care Association of New York State BUDGET from p. 1 As we alerted you last week, HCA, the New York State Association of Health Care Providers (HCP) and the Hospice and Palliative Care Association of New York State (HPCANYS) are jointly hosting a home care, hospice and MLTC open forum for legislators and their staff tomorrow in Albany from 9:30 a.m. to 12:30 p.m. The purpose of this program is to provide legislative offices with background on home and community care, including some of the issues that will command attention from lawmakers in the coming weeks as the legislative session and the state budget negotiation process commence.

This program is especially important given a change in leadership, the recent announcements of new Majority committee assignments, and a new legislative agenda for the Senate, as well as the coordination of that agenda with the priorities that will emanate from the Governor’s proposed budget and in the Assembly’s budget plan.

From now until April 1, the state budget will be a primary focus of the legislative session. This process begins with the Governor announcing his budget proposal and the other houses – Assembly and Senate – responding with their own respective one-house resolutions and/or bills accepting, modifying, rejecting or adding to provisions of the Governor’s plan.

Upon the proposed budget’s release, HCA will provide members with a preliminary analysis via an immediate e-mail alert, followed by a statewide call (planned for late January) to brief you on the budget and answer your questions, as well as a more detailed summary of the proposed budget in a follow-up memo.

During the first week of February, we will also be inviting you to participate in a very important webinar providing guidance on advocacy techniques for the legislative session, stressing the idea that advocacy is a core function of home care, hospice and MLTC executive leadership that takes many forms. This primer session seeks to help demystify what can often seem like a complex, daunting process. Please stay tuned for a more detailed announcement of the webinar date and registration.

Board Meeting, PAC Reception and State Advocacy Day: Feb. 11-12 HCA’s Board of Directors is already slated to meet and engage in advocacy meetings as part of our February 11-12 advocacy program. We ask that you include these dates on your calendar and plan on being in 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 V ice 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

Volume 4, No. 1 January 7, 2019

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

Albany to likewise meet with your elected officials in support of critical advocacy for our field.

The program will begin on February 11 with an afternoon meeting of our Board of Directors, followed by a Political Action Committee (PAC) fundraiser from 5 to 6:30 p.m. Every individual in the association should consider a donation to the HCA PAC. The next day (February 12) will begin with remarks from state legislative leaders and executive branch officials to kick off our official state Advocacy Day program in Room 711A of the Legislative Office Building in Albany, followed by an afternoon of legislative appointments. HCA will be making appointments for members of our Board, but we will be encouraging other HCA member leaders to make their own appointments.

Please save these dates and look for a more detailed agenda and messaging soon.

Have you completed HCA’s financial and program trends survey?

We know, anecdotally and from past data, the pressures and needs of HCA’s members that inform our advocacy asks and messaging. We just need the most recent data to back it up, which is the goal of HCA’s financial and program trends survey. If your organization hasn’t completed this survey yet, please do so immediately, but no later than a week from today, January 14.

This survey asks questions about your organization’s payor mix; financial data; payment, cash-flow, accounts receivable and other finance issues; minimum wage budgeting and impacts; staff vacancy and turnover rates; and several other metrics that support our advocacy asks.

We need a representative sample, and that means all home care agencies must complete the survey, which will be coupled with a cost, statistical report and Medicaid Managed Care Operating Report data analysis we are conducting for all home care, hospice and MLTC organizations.

Please complete the survey now at https:// www.surveymonkey.com/r/201819industrysurvey.

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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

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BSN with 2 years’ experience in Education in a Certified home care agency; Master’s degree in Nursing, preferred

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2-3 years clinical nursing practice

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2 years’ community health nursing

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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/ registered-nurse-staff-developmentsupervisor-home-care-mineola-ny/ An EOE m/f/d/v.

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

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FINANCING from p. 1 immediate funding support, as well as the adoption of permanent improvements in the state’s rate methodologies that should be done in the new state budget.

and MLTC infrastructure support, beginning with health personnel, as summarized below. 

HCA submitted proposals to the Governor’s office for critical home health and hospice workforce support, addressing a wide array of areas, both immediate and structural. HCA’s proposals would also support a variety of home care initiatives to advance our service and participation in the evolving health care system. We have been invited to follow-up meetings with the Governor’s counsels on these proposals.

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With the designation of new Aging Chairs in the Senate and Assembly, and new Health, Finance and Mental Chairs in the Senate, HCA is now working with these new chairs to garner sponsorship of our legislative and budget proposals in each house. Legislative support is essential for these proactive proposals, as well as for proposals we will need the Legislature to add to the Governor’s budget.

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In one such meeting, Assemblyman John McDonald (from the Capital Region area) said he would be reintroducing in 2019 our HCA-authored legislation that would require home care’s incorporation into the state’s core strategic policies and programming for public health, primary care and prevention – an area where home care is near completely overlooked at present. That legislation was adopted last year in the Senate’s budget bill but then later not included by the Assembly in the final budget agreement. A key step for adoption this year is getting the bill reintroduced, and so we greatly appreciate the Assemblyman’s sponsorship.

Assemblyman McDonald, a practicing

In discussions with the state Department of Health (DOH) reimbursement team, followed by simultaneous requests to the Governor’s office, Division of Budget and the DOH leadership, HCA has recently: 

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Pressed the state to redress its MLTC and LHCSA underpayments for both MW and overall operating and service support. We emphasized the extent to which these underpayments are plaguing the system and counter-productive to state goals. Further, we underscored the state mandate to fund MLTCs and provider services at “actuarially sound and adequate” levels, which are provisions the Legislature has strongly supported and that HCA has pushed to be included in the law. HCA is calling for this standard to be reinforced.

Urgently appealed for DOH implementation of the MW rate adjustments which have yet to be implemented as required by statute for CHHAs and contracted agencies. DOH committed to HCA that it will begin the process and report back to HCA on the status of this request.

Requested a “COLA” adjustment for the CHHA individual Medicaid fee-for-service (FFS) rates which, in addition to lagging Medicaid funding, have reportedly caused severely undervalued benchmarks for Medicare Advantage reimbursement to agencies, greatly eroding CHHA financial capacity. DOH said this was a new revelation, and it committed to discussing the issue internally and reporting back to HCA on possible DOH responses.

HCA Bill/Budget Proposal Sponsorship Along with financing and reimbursement method fixes, HCA is also advocating for critical home care, hospice

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pharmacist, also recommitted to sponsorship of HCA’s sepsis legislation (which also unanimously passed the state Senate last year).

HCA will provide a full report to the membership that distills our budget asks and priorities, with messaging and advocacy guidance needed by all members at the grassroots level with each of your elected officials.

New Development on 24-Hour/Live-In Care In a major new development on 24-hour/live-in care, 1199SEIU has filed a “class action grievance” on “behalf of all of its home care bargaining unit members employed by various agencies concerning claims that employees were not properly paid on 24-hour cases and with respect to any other outstanding wage and hour claims.” The filing states its purpose is the “preservation of its (union) members’ rights under both the applicable collective bargaining agreements and the law.”

Agencies with 1199 contracts that are affected by this action should review this with counsel.

This action is taken on the eve of the New York State Court of Appeals’ expected hearing of the Andryeyeva case concerning 24-hour/live-in services on February 12, 2019.

HCA has worked extensively in our advocacy on the “13-hour rule” for 24-hour/live-in cases, including: our formal requests, comments and testimonies for affirmation of the state Department of Labor (DOL) and state Department of Health (DOH) guidance and DOL’s proposed emergency rule; submission of amicus curiae briefs in the Andryeyeva case and other important cases that challenged the 13-hour standard; member briefings and education; and other actions.

HCA will be providing further information on the implications and developments with the class action suit and continuing our priority advocacy on this issue overall.

Final Advanced Aide Training Program Info, Materials Now Available Late Friday evening, the state Department of Health (DOH) issued a Dear Administrator Letter and corresponding materials advising home care and hospice providers of their ability to now offer the state’s Advanced Home Health Aide Training Program (AHHATP). See https://www.health.ny.gov/facilities/home_care/dal/docs/19-01.pdf.

The law for advanced home health aides (AHHAs) took effect in May 2018, and regulations were finalized by DOH in December and the state Education Department (SED) in June of last year. However, stakeholders have awaited further information on the policies for training programs that are necessary to begin the process of acting on the law and utilizing AHHA services.

To be approved as an AHHATP, an entity must: 

Be a current HHATP listed on the Home Care Worker Registry with at least one year of operational experience; Continued on next page

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Have enrolled at least ten students in the full HHATP course within the past 12 months; and

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Be in compliance with HHATP requirements.

The AHHA may be employed by a licensed home care services agency, certified home health agency, Long Term Home Health Care Program, a hospice, or an enhanced assisted living residence. The AHHA may provide services to a patient receiving nursing services from one of these provider types. The AHHA is not allowed to perform advanced tasks for residents of a residential health care facility, patients in hospital, clinic or other outpatient health care settings.

The final SED regulations outline the advanced tasks that may or may not be performed by an AHHA, as well as the training and competency requirements. Advanced tasks include nursing tasks commonly performed by licensed practical nurses (LPN) in a patient’s home such as administering medications that are routinely taken by the patient, administering injections of low molecular weight heparin and diabetes medications, and administering pre-filled auto injectors of epinephrine, naloxone, or glucagon in an emergency. The advanced tasks do not include converting or calculating medication dosages, in addition to other impermissible tasks.

The DOH regulations define advanced home health aide, where AHHA services can be provided, the employer’s requirements (including assignment and direct supervision), and the AHHA’s 18-hour annual in-service requirements. The requirements for training program initial approval, re-approval, and operation of an AHHATP are specified in the Advanced Home Health Aide Training Program Guide.

A full list of AHHATP requirements, including an AHHA Training Program Guide, AHHA Training Program Application, AHHA Handbook for Students and Certified AHHAs, Training Program Curriculum, Instructor Evaluation Skills Checklist and more, may be found on the DOH AHHA website at https:// www.health.ny.gov/facilities/home_care/advanced_home_health_aides.

For questions, please contact Andrew Koski (at akoski@hcanys.org) or Alyssa Lovelace (at alovelace@hcanys.org).

ICYMI: Recent HCA Alerts on Flu Mask Requirement, Andryeyeva Case, LHCSA Registration Rule & Medicaid Billing In case you missed it (ICYMI), HCA sent several important alerts since our prior edition of The Situation Report (before the holidays) with breaking news items that we are summarizing here. See the links for full versions of the updates online.

Influenza Declared Prevalent; Flu mask requirement in effect See: https://conta.cc/2EzTfAZ On December 20, the state Department of Health (DOH) Commissioner Dr. Howard Zucker declared influenza to be prevalent for the 2018-19 season. As a result, home care, hospice and other health care

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providers are required to ensure that all personnel not vaccinated against influenza for the current influenza season are wearing a surgical or procedure mask while in areas where patients or residents are typically present.

Andryeyeva Case to Be Heard in Court of Appeals on Feb. 12 See: https://conta.cc/2EAe3rW The Andryeyeva v. New York Health Care, Inc. case concerning 24-hour/live-in services is on the February 12, 2019 docket for arguments before the New York State Court of Appeals, the state’s highest court.

HCA has covered this case extensively, including this appeal. Most recently, HCA filed an amicus brief in support of the industry. At issue is the fate of the state Department of Labor’s (DOL’s) “13-hour standard” for determining compensable hours when an aide works a 24-hour/live-in shift.

DOH Posts Proposed Rule on LHCSA Registration Process See: https://conta.cc/2CpGl7b The state Department of Health (DOH) has posted a proposed rule implementing LHCSA registrations. (see also related p. 9 story.) The December 18 posting appears to codify a process on an annual basis that was already implemented for the current period and coming year as part of the 2017 Statistical Report, due this past November. Comments on the rule are due in 60 days or February 17, 2019.

As we’ve extensively noted, LHCSAs who did not register by the November 16, 2018 due date are or will be exposed to possible fines. More seriously, LHCSAs who haven’t registered by January 1, 2019 will not be permitted to operate, provide services (nursing, home health or personal care), or receive reimbursement from any source for the provision of services.

Important Medicaid Billing Announcements: Two-Week Payment Lag, CHHA EPS See: https://conta.cc/2F7mpI7 DOH recently provided updated billing guidance for CHHAs under the Medicaid Episodic Payment System (EPS) as well as an announcement on the two-week Medicaid payment lag.

The CHHA EPS guidance is in response to several questions from providers, especially about the synchronization of Medicare and Medicaid episodes. It also reiterates that a new Medicaid episode should not be created due to the completion of a new OASIS assessment.

Also, DOH plans to return to a Medicaid payment lag over two months, with providers expected to receive four checks in January and three checks in February. Importantly, HCA’s alert outlines a process for agencies to seek an exemption/suspension of the payment lag (by January 14) due to substantial cash-flow impacts.

January Aware Prepare Now Available The January 2019 issue of the state’s Aware Prepare Update is now available online. The Update contains upcoming preparedness trainings, such as webcasts, webinars and in-person trainings, as well as archived exercises and on-demand e-learning. It can be downloaded at https://hca-nys.org/wp-content/uploads/ 2019/01/2019_January_AP.pdf.

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HCA Sepsis Initiative Continues to Draw State, National, International Attention Exciting developments on the HCA sepsis initiative continue. These developments are important for home care’s efforts to save lives, health and costs. They are also positioning New York’s home care system to address this area of potentially avoidable hospitalizations, with providers beginning to make headway in receiving funds from the Delivery System Reform Incentive Payment (DSRIP) program for such purposes.

HCA’s national – and even international – reach on our sepsis initiative also provides a means of financial contribution by non-members to HCA in support of the Association’s efforts while elevating home care’s regard among policymakers for our system’s capabilities as state and federal officials look to home care for stepped up roles in priority areas of health.

Here are some examples from just the past two weeks alone: 

NYSOFA Commissioner Promotes Statewide Sepsis Effort in Collaboration with HCA – The NYS Office for Aging officially launched a statewide partnership with HCA to widely promote our sepsis work across the aging service organization communities throughout the state.

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International Outreach to HCA on Sepsis Tool – Over the holiday period, HCA received outreach from infection control and health officers in Asia who are dealing with sepsis, learned of our sepsis tool, and have requested a briefing on how to access and incorporate it into their nation’s home health system

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National Home Care Sepsis Educational Effort in Works – The national Sepsis Alliance is beginning groundwork on an education and training initiative for every home care agency in the country that will provide critical background on sepsis and home care’s role in sepsis, featuring HCA and the HCA sepsis tool.

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Illinois Home Care and Hospital Associations Adopting HCA Sepsis Tool – The Illinois home care and hospital associations have adopted the HCA sepsis tool and joined forces to promote use of the tool by all of the Illinois state home care association agencies and the hospital association’s members statewide.

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More Providers in Multiple States Request Adoption of HCA Tool – In addition to Illinois, providers serving multiple states contacted HCA over the past few weeks with requests to adopt the tool. These include Michigan, Texas, California, New Jersey, Pennsylvania and others. Steps are underway to provide these states with the background training and educational materials developed

by HCA and IPRO, as well as user agreements necessary to adopt and begin use of the tool. Other state home care associations continue to request briefings and materials to consider adoption and use of the tool.

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HCA Tool Being Adopted by ID/DD Provider – An HCA member specializing in care of persons with intellectual and developmental disabilities is proceeding to adopt the HCA sepsis tool for use across all of its applicable settings, including in-home, group homes and other settings. HCA looks forward to eagerly working with this member agency in this enthusiastic implementation of the tool.

Continued on next page

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Continued from previous page 

HCA Member Receives DSRIP Funding to Support Sepsis Tool – An HCA provider member has received funding under DSRIP to support its implementation and application of the HCA sepsis tool. HCA extends congratulations on the tremendous progress and recognition of this member in addressing sepsis through this tool and in drawing its area hospitals’ support and partnership.

Home care providers, MLTCs and other community health entities not yet using the HCA tool can request authorization to adopt the tool by writing sepsistool@hcanys.org.

DOH Posts Lists of Registered LHCSAs The state Department of Health (DOH) has posted on its Health Data New York website a list of the Licensed Home Care Services Agencies (LHCSAs) that completed the required registration process.

The list, including those LHCSAs who have not registered, is being updated regularly and is at https:// health.data.ny.gov/Health/Licensed-Home-Care-Services-Agency-Registration-St/ra3v-zevu.

As HCA has repeatedly communicated to members, LHCSAs had to register with the state as part of the 2017 LHCSA Statistical Report. Registration was required by January 1, 2019.

Those LHCSAs who have not registered will not be able to operate or receive reimbursement from any source and managed care plans will terminate them from their networks, and they will face fines for not submitting the 2017 LHCSA Statistical Report (which includes the registration form).

During November and December, HCA worked with DOH to get LHCSAs to register and we contacted many members who had not completed the registration process.

As of January 4, there were about 1,317 registered LHCSAs and 170 not registered.

Final OASIS-D Guidance Manual Now Available On December 20, the Office of Management and Budget (OMB) approved the final OASIS-D Guidance Manual, effective January 1, 2019. This manual provides guidance for home health agencies on how to ensure the collection of high-quality and accurate OASIS data. It includes both general data collection conventions and item-specific guidance, as well as links to resources for agencies.

The manual is at https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/ HomeHealthQualityInits/Downloads/draft-OASIS-D-Guidance-Manual-7-2-2018.pdf.

Open Call for Candidates to HCA’s Board of Directors Are you interested in applying for a seat on HCA’s Board of Directors or do you know of a good candidate?

HCA is opening our call for candidates. The deadline to submit nominations is February 1, 2019. All nominations will be reviewed by the HCA Nominating and Governance Committee. Candidates selected

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for consideration will be contacted and vetted by the Nominating Committee for consideration by the HCA Board of Directors. Incoming Board Members are to be confirmed at the May Board Meeting during HCA’s Annual Conference.

There are two ways to apply. You can complete a PDF application (see https://hca-nys.org/wp-content/ uploads/2018/12/2019-HCA-Board-of-Directors-Application.pdf), which provides further details about candidate criteria and eligibility requirements, board meeting participation, terms of office and other obligations and responsibilities. Or you can complete an application/nomination through an online form at https://www.surveymonkey.com/r/2019BoardApplication.

Please be ready to submit your résumé/CV and information on: your academic background, professional experience, contributions to the field, areas of expertise, committee interests, and other details.

If you have any specific questions or want to e-mail your résumé/CV separate from the online form, please contact HCA’s Director of Governance and Graphic Designer Jenny Kerbein at jkerbein@hcanys.org or (518) 810-0659.

CMS Makes Hospice Provider Preview Reports Available The Hospice provider preview reports and Hospice Consumer Assessment of Healthcare Providers and Systems (CAHPS) Survey provider preview reports have been updated and are now available.

These two separate reports are in providers’ Certification and Survey Provider Enhanced Reports (CASPER) non-validation reports folders. Hospices are encouraged to review their Hospice Item Set (HIS) quality measure results from the second quarter of 2017 to the first quarter of 2018 (April 1, 2017 through March 31, 2018) and their facility-level CAHPS survey results from the second quarter of 2016 to the first quarter of 2018 (April 1, 2016 through March 31, 2018).

Providers have 30 days to review their HIS and CAHPS results (December 10, 2018 through January 9, 2019).

Providers may request CMS review if they believe a denominator or other HIS quality metric is inaccurate, or if there are errors within the CAHPS survey data. This process is at: https://www.cms.gov/Medicare/ Quality-Initiatives-Patient-Assessment-Instruments/Hospice-Quality-Reporting/Public-Reporting-HISPreview-Reports-and-Requests-for-CMS-Review-of-HIS-Data.html and https://www.cms.gov/Medicare/ Quality-Initiatives-Patient-Assessment-Instruments/Hospice-Quality-Reporting/Public-Reporting-CAHPSPreview-Reports-and-Requests-for-CMS-Review-of-CAHPS-Data.html.

For additional information on how to access these reports, view the HIS Preview Report Access Instructions and the Hospice CAHPS Provider Preview Reports Access Instructions at: https://www.cms.gov/Medicare/ Quality-Initiatives-Patient-Assessment-Instruments/Hospice-Quality-Reporting/Downloads/HospiceProvider-Preview-Report-Access-Instructions.pdf.

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Upcoming Deadlines and Due Dates

Requirement/Change

Effective/Due Date

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

https://www.cms.gov/Medicare/NewͲMedicareͲCard/index.html

LHCSA Registration Process

Must be submitted with LHCSA Statistical Report; if not submitted

by January 1, 2019, agency will not be able to operate or receive reimbursement from any source

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

Federal Deficit Reduction Act Compliance Certification form

December 1 to December 31, 2018

https://omig.ny.gov/draͲcertification

State Mandatory Compliance Certification form

December 31, 2018

https://omig.ny.gov/sslͲcertification

Minimum Wage Increase

December 31, 2018

https://www.labor.ny.gov/workerprotection/laborstandards/workprot/mi nwage.shtm

Submission of marketing materials used prior to November 1, 2018 by Fiscal Intermediaries December 31, 2018 to state Department of Health under “amnesty” review process

https://www.health.ny.gov/health_care/medicaid/redesign/mrt90/mltc_ policy/docs/2018Ͳ10Ͳ22_fiscal_advert_policy.pdf

OASISͲD for Certified Home Health Agencies

January 1, 2019

OASISͲD Guidance Manual: https://www.cms.gov/Medicare/QualityͲInitiativesͲPatientͲAssessmentͲ Instruments/HomeHealthQualityInits/Downloads/OASISͲDͲGuidanceͲ ManualͲfinal.pdf

Changes to New York’s Paid Family Leave program

January 1, 2019

https://paidfamilyleave.ny.gov/2019

Comments due on state Department of Labor proposed employee scheduling/callͲin pay rule

January 11, 2019

hearing@labor.ny.gov

2018 Adult Care Facility 4th Quarter Statistical Information Report

January 31, 2019

https://commerce.health.state.ny.us

2017 CHHA and LTHHCP Statistical Report

February 1, 2019

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

2017 Hospice Cost and Utilization Report

February 1, 2019

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

Andryeyeva court case to be heard by NYS Court of Appeals

February 12, 2019

https://www.nycourts.gov/ctapps/courtpass/Docket.aspx (enter the APL number 2018Ͳ00038)

Comments due on LHCSA Registration Proposed Rule

February 17, 2019

https://regs.health.ny.gov/sites/default/files/proposedͲ regulations/New%20Requirements%20for%20Annual%20Registration%20 of%20Licensed%20Home%20Care%20Services%20Agencies.pdf

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Volume 4, No. 1 January 7, 2019 

OIG Posts Updated Work Plan In December, the federal Office of the Inspector General (OIG) issued an updated Work Plan.

It is at https://oig.hhs.gov/reports-and-publications/workplan/index.asp.

One new area that affects home care, hospice and other providers is the state’s compliance with fee-forservice (FFS) and managed care organization provider enrollment requirements.

The 21st Century Cures Act requires states to enroll all Medicaid providers, both those in Medicaid fee-forservice (FFS) and managed care organizations (MCOs). OIG will be surveying state Medicaid agencies about their enrollment of FFS and managed care providers and implementation of required provider enrollment screening activities.

Since early this year, HCA has advised providers that they need to enroll in Medicaid if they want to continue to receive payments from managed care plans even if they don’t bill Medicaid directly. More information on enrollment is at https://www.emedny.org/info/ProviderEnrollment/index.aspx.

CMS Issues RFI on Accrediting Organizations On December 18, the U.S. Centers for Medicare and Medicaid Services (CMS) issued a Request for Information (RFI) seeking comment on the financial relationships between CMS-approved Accrediting Organizations (AOs) and the health care facilities they review and monitor.

The RFI asks for public input on whether consulting fees charged by AOs for services to the entities that they monitor create conflicts of interest, as the same entity is both consulting for a given facility and monitoring whether that facility is accredited to participate in Medicare.

CMS approves AOs whose accreditation standards meet or exceed Medicare’s quality and safety requirements. State agencies conduct follow-up reviews of select facilities to audit AO surveys, and a significant number of state audits have uncovered issues that AOs missed.

CMS says the high “disparity rate” between state audits and AO reviews has led CMS to undertake a comprehensive analysis of its oversight of AOs. In addition to accrediting facilities, some AOs also provide consulting services, such as the following: 

Assisting clinical and non-clinical leaders, including administrators, in understanding standards for compliance;

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Reviewing a health care facility’s processes, policies, and functions;

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Identifying and providing technical assistance for changing areas in need of improvement; and

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Providing a simulation of a real survey, including comprehensive written reports of findings, in advance of the AO’s formal survey.

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Volume 4, No. 1 January 7, 2019 

Continued from previous page CMS intends to use the information received through this RFI to assist in developing potential future rulemaking or guidance. As part of this process, CMS will determine whether revisions should be made to the AO application and renewal process to identify actual, potential, or perceived conflicts of interest.

The RFI Notice can be obtained at https://www.govinfo.gov/content/pkg/FR-2018-12-20/pdf/2018-27506.pdf.

A fact sheet on the RFI is at https://www.cms.gov/newsroom/fact-sheets/medicare-program-cms-requestsstakeholder-feedback-accrediting-organizations-conflict-interest-and.

Paid Family Leave Changes for 2019 New York’s Paid Family Leave program has announced changes for 2019.

In 2019, the employee contribution is 0.153 percent (up from 0.126 percent in 2018) of an employee’s gross wages each pay period. The maximum annual contribution is $107.97 (increased from $85.56 in 2018).

Effective January 1, 2019, the amount of leave will increase from eight to ten weeks per year. Also, those taking Paid Family Leave will receive 55 percent of their average weekly wage (increased from 50 percent in 2018) up to a cap of 55 percent of the current Statewide Average Weekly Wage (SAWW) of $1,357.11 (up from $1,305.92).

Thus, the maximum weekly benefit in 2019 under Paid Family Leave will be $746.41 (up from $652.96).

Employees earning less than the SAWW of $1,357.11 will contribute less than the annual cap of $107.97, consistent with their actual wages.

Leave can be used to: 1) care for a family member (including a child, parent, grandparent, grandchild, spouse or domestic partner) with a serious health condition; 2) bond with an employee’s newborn or newly placed adoptive or foster child during the first 12 months following birth or placement; or 3) address any qualifying exigency to a spouse, domestic partner, child or parent who is serving on active military duty.

More information is at https://paidfamilyleave.ny.gov/2019.

Expansion of Paid Family Leave Meanwhile, on December 28, Governor Cuomo vetoed legislation, S.8380-A (Funke)/A.10639-A (Morelle), that would have expanded Paid Family Leave to include bereavement benefits for employees who experience the death of a family member. In his veto message, the Governor expressed concerns about the impact on lowwage workers to fund this program expansion.

In November, Governor Cuomo had signed legislation, S.2496-B (Hannon)/A.297-C (Gunther), that expands the definition of “serious health condition” under Paid Family Leave to include transplantation preparation and recovery from surgery related to organ or tissue donation.

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

Volume 4, No. 1 January 7, 2019 

CMS Extends Use of Hospice Contracted Nursing Staff The U.S. Centers for Medicare and Medicaid Services (CMS) has extended its designation of the national nursing shortage as an “extraordinary circumstance” for two more years (until September 30, 2020), meaning that hospice agencies may continue to use contracted staff – in addition to their full time nursing staff – if they are unable to provide a sufficient number of nursing staff directly to meet the needs of patients.

The announcement is in a letter to state surveyors at https://www.cms.gov/Medicare/Provider-Enrollmentand-Certification/SurveyCertificationGenInfo/Downloads/QSO19-03-Hospice.pdf.

CMS is eliminating the previous requirement that hospices must notify CMS if using contacted staff during extraordinary circumstances and submit justification for such use to its State Survey Agency. This notification/justification is not required by 42 CFR 418.64. Compliance with the regulation for use of contracted staff will be reviewed as a part of the routine survey process.

When contract services are utilized, the hospice agency maintains all professional, financial and administrative responsibility for the services.

Questions about this issue can be submitted to CMS at SCG_Hospice@cms.hhs.gov.

January CAHPS Newsletter Posted The January issue of the Home Health Consumer Assessment of Healthcare Providers and Systems (HHCAHPS) Coordination Team Quarterly Review (CTQR) has been posted and includes information for home health agencies and survey vendors.

It is at https://homehealthcahps.org/Portals/0/Newsletter/CTQR_Newsletter_Jan_2019.pdf.

The newsletter includes the following information:

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The next data submission deadline is January 17, 2019.

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To register on the HHCAHPS website, home health agencies must now complete a two-step process: 1) register for a username and password by completing the Login Registration form; and 2) register the agency’s CMS Certification Number (CCN) via the Register CCNs form after logging in.

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Home Health Agency Preview Reports for the third quarter of 2017 to the second quarter of 2018 are now available on the HHCAHPS website.

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The HHCAHPS project team will be conducting cognitive interviews (in English and Spanish) with patients in spring of 2019 to test possible new questions or to replace current questions on the HHCAHPS Survey.

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HHCAHPS survey testing summary results will be shared in a future quarterly newsletter.

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Volume 4, No. 1 January 7, 2019 

Cybersecurity Guidelines Issued The U.S. Department of Health and Human Services (HHS) and the Health Sector Coordinating Council have issued cybersecurity “best practices” that focus on baseline measures such as protecting e-mails, limiting system access and developing incident response plans.

The guidelines are at https://www.phe.gov/Preparedness/planning/405d/Documents/HICP-Main-508.pdf.

They aim “to raise awareness, provide vetted practices, and foster consistency in mitigating the most pertinent and current cybersecurity threats to the sector” and to help the health care sector to develop meaningful cybersecurity objectives and outcomes.

LawTalk: Managing The Risk of Employee Class Actions

By Brendan Sweeney, Of Counsel, and Frank J. Fanshawe, Principal, Jackson Lewis, the firm for HCA’s Counsel New York’s labor laws and regulations contain many potential areas of exposure to employee class action claims, and the home care sector is especially vulnerable.

The reality is that perfect compliance is difficult to achieve; and class claims can exponentially increase an employer’s financial risk, even when stemming from small mistakes.

In May 2018, the U.S. Supreme Court issued one of its most important employment law decisions in many years, with implications for class action litigation. The Court (in Epic Systems Corp v. Lewis) held that employer-employee arbitration agreements containing class action waivers are enforceable, rejecting the argument that such agreements violate the rights of employees to act collectively under the National Labor Relations Act. This means that a properly drafted agreement (i.e., a waiver) can bar an employee from bringing, or participating in, a class action.

Class action waivers can be a powerful tool for managing the risk of employee class actions. The cost to defend a class action is often daunting, and the risk of losing a class case often forces employers to settle at significant financial cost. Class action waivers level the playing field.

The value of avoiding a single class action is often sufficient to justify implementing an arbitration agreement with a class action waiver. But this approach to dispute-resolution is not right for every employer.

Some of the negatives include:

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The protection offered by a class action waiver is not absolute. A class action waiver does not bar the Equal Employment Opportunity Commission (EEOC), or similar agencies, from bringing claims on behalf of groups of employees.

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The employer must agree to pay all arbitration costs to ensure enforceability of the agreement.

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Arbitration cases are more likely to go to trial than cases in court.

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The right to appeal an adverse decision from an arbitrator is very limited.

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Employers face the risk of “serial” arbitration claims. Even after Epic Systems, lawyers who represent employees will look for issues that apply to many employees. In lieu of class actions, and assuming

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they can attract plaintiffs, these lawyers will bring multiple, similar claims in arbitration to drive up costs and increase their settlement leverage.

Many employers who learned of the Supreme Court’s decision have asked whether they should implement an arbitration agreement with a class action waiver. We suggest that you ask a different question first: Do I have a significant class action risk?

We recommend conducting a privileged compliance audit to identify possible class action risk. Then, before deciding whether to implement a class action waiver, try to address the areas of non-compliance. At that point, an employer is in a better position to weigh the benefits of a class action waiver against the negatives of arbitration.

If an employer decides that a class action waiver is an appropriate risk-mitigation tool, the arbitration agreement must be fair to employees and must inform them of the rights they are waiving. There is a welldeveloped body of law that sets the parameters for an enforceable employee arbitration agreement.

It is also important to communicate the agreement to employees in a transparent manner. Employees should understand that arbitration is a fair and efficient means of resolving disputes and that they are not giving up substantive rights when they agree to arbitration. The main thing that employees are giving up is the right to a jury and the right to bring class claims. The courts have made clear that employers can choose to resolve disputes with their employees under these parameters.

While an arbitration agreement and class action waiver is not right for every employer, every employer should nevertheless evaluate the tools available to mitigate these risks, especially considering the risk presented by class actions.

Please note that this article is for general, informational purposes, is not legal “advice,” and does 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.

Health Resources 

“Trends in Postacute Care Spending Growth During the Medicare Spending Slowdown,” by the Commonwealth Fund https://www.commonwealthfund.org/sites/default/files/2018-12/ Keohane_trends_postacute_care_spending_ib.pdf

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“Ensuring Only the Active Billing Hospice Can Submit a Revocation,” by the U.S. Centers for Medicare and Medicaid Services https://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/2018Downloads/ R4187CP.pdf https://www.cms.gov/Outreach-and-Education/Medicare-Learning-Network-MLN/ MLNMattersArticles/Downloads/MM11049.pdf

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

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