F2F Rule Change Guides Released by HCA

With misinformation and uncertainty swirling around the new Physician Face-to-Face Requirements (F2F), the Home Care Alliance has released notices for hospitals and physicians as a guide for both home health agencies and their partners to utilize in understanding the impending changes.

As reported in HCA newsletters and alerts, CMS hosted its first (and only) educational forum on the new changes to the Face-to-Face physician encounter requirement for Medicare home health coverage on December 16. Given the lateness of the guidance, the effective date of January 1, 2015, and the many still unanswered questions, the Home Care Alliance of MA, the National Association for Home Care and Hospice, and others have asked CMS to phase-in enforcement of the requirements to allow time for home health agencies, physicians and hospitals to be educated about the new rules. CMS has not yet responded to that request.

In an effort to counter some misinformation circulating that the F2F requirement has been repealed, the Alliance has released the notices for agencies to use with their individual partners in the provider community. The Alliance is also working with the MA Medical Society and the MA Hospital Association on efforts to educate physicians and hospitals about the changes. We have encouraged MMS and MHA to inform hospitals and doctors that:

•    the F2F encounter requirement is still in place for Medicare patients in need of home health services.
•    the F2F encounter still MUST be documented, signed and dated by an MD, along with the documentation of the patient’s need for skilled care, homebound status and plan of care.
•    home health agencies will work with our hospital and physician partners to understand the requirements once CMS clarifies the rule and begins educational sessions for all providers.
Clearly, there are still issues that need to be clarified around the hospitalist as the certifying physician.

HCA will continue to push for more guidance from CMS on this, as well as more physician and hospital education from CMS.

Return to www.thinkhomecare.org.

Federal Judge Strikes Down Portion of DOL Companionship Rule

A federal court ruled yesterday that the U.S. Department of Labor (DOL) violated the Fair Labor Standards Act (FLSA) with its regulation that excluded third-party employers from the application of the “companionship services” and “live-in domestic services” overtime exemptions.

The lawsuit challenging DOL’s new narrowed interpretation of the companionship exemption was filed by the Home Care Association of America, the National Association for Home Care and Hospice (NAHC), and the International Franchise Association.  It was filed in US District Court for the District of Columbia.  The opinion was written by judge Richard J. Leon.  The full text of Judge Leon’s decision is available here.

Yesterday, NAHC’s Vice President for Law Bill Dombi drafted the following questions and answers, which provide further background on the implications of this ruling:

The Overtime Lawsuit: What Does the Court Ruling Mean?
(Source: NAHC)
The decision issued by the federal court on December 22, 2014 is a big win for home care, but much remains to be done to fully preserve the overtime exemptions for companionship services and live-in domestic services. Here are some of the most important things to know to understand the impact of the decision and what it means to home care.
Q.     What did the court rule?
A.     The court ruled that the US Department of Labor violated the plain language of the Fair Labor Standards Act (FLSA) with its regulation that excluded third-party employers from the application of the “companionship services” and “live-in domestic services” overtime exemptions. Home care companies are considered third-party employers. Home care workers employed by the direct consumer of the care or their family members acting as the employer are the only parties that could have used the exemptions under the rule that was invalidated by the court. This does not change any state laws that already limit the exemptions or their application.
Q. Does this mean that home care companies do not have to pay hourly home care aides overtime?
A. No. The regulation also redefined companionship services, limiting that definition to fellowship services and no more than 20% of time on personal care or housekeeping tasks. The lawsuit also challenges that part of the new regulation as well. However, that part of the case has not yet been presented to the court. We are now preparing to do so.
Q. Why wasn’t the definition of “companionship services” presented to the court earlier?
A. A tactical decision was made on how the case would be litigated. If the definitional issue was presented before or concurrent with the third-party employer issue there was a serious risk that the lawsuit could make matters worse for home care companies. If the court invalidated the definition of “companionship services,” but upheld the exclusion of third-party employers from the application of the exemption, home care companies would be outside an expanded exemption. Workers directly employed by the consumer would have qualified for the exemption. That would put home care companies at a cost disadvantage to consumer/employer care. Consumers (and state Medicaid programs) would have bypassed the agency model of care in favor of direct employment to save money.
Q. When will there be a court ruling on the definition of “companionship services?
A. A discussion of that will occur between legal counsel from both sides on December 23. It is hoped that the Department of Labor will agree to a temporary hold on the new rule consistent with its “policy action” under which the government will not enforce the rule for at least six months. To do so, the government only needs to agree that private enforcement will be put on hold as well.
Q. If the government does not agree to hold off on the rule, what happens next?
A. We will then need to go back into court to get a temporary injunction before January 1. That will require that we show that we are likely to succeed on the merits when the court fully hears the case and that home care companies will suffer irreparable harm if the court does not maintain the status quo with the current rule.
Q. What about live-in services?
A. The only substantive change that the new rule made to live-in services is the exclusion of workers employed by third-party employers from the exemption. “Live-in domestic services” is a much broader class of employees that would include personal care and housekeeping workers. As such, the court ruling effectively returns that exemption to it current state. Home care companies would not be required to pay live-in workers overtime unless state law requires such.
Q.     What should we do now in our company?
A.      The best advice we can offer is to “stay tuned” over the next week as much can and will happen to clarify things.  However, it would be prudent to continue to expect to trigger whatever action you planned to take on January 1 in the absence of the court’s decision. Things can change that dramatically, that quickly.
Q.     Will the government appeal?
A.      That is one option open to the Department of Labor. However, they would need to get the federal judge to stay his ruling pending any appeal. If the judge refuses to do so, the government would need to get the Court of Appeals to issue a stay.

While this ruling has no impact on Massachusetts law, we will inform members as additional developments occur in this court case.

Return to www.thinkhomecare.org.


Palliative, End-of-Life Care Options Regulation Finalized

A provision  included in the state’s 2012 Health Care Cost Containment Law (Chapter 224) on palliative and end-of-life care options is being realized through a final regulation issued by the Department of Public Health.

It is now a patients legal right to receive information about palliative care and hospice from a facility as well as their full range of options for treatment, if the condition warrants either approach. Massachusetts hospitals, clinics and long-term care facilities are expected to comply.

The Home Care Alliance helped advocate for the inclusion of this provision in the law and also commented with several other provider groups and organizations at a public hearing when the regulations were proposed. At that time, the definition of palliative care in the proposed regulation was more in line with hospice services. The Alliance, among many other groups, expressed concern that palliative care is a team-based approach to an advanced illness, but not necessarily linked to the expected outcome of that illness as with hospice.

DPH has released a guide explaining the right to these options in several languages for consumers, a summary of what was changed from the proposed to the final regulation, and the regulation language itself. The list of resources can be viewed here on a DPH webpage.

Return to www.thinkhomecare.org.

HCA Ad Campaign with CBS-Boston Underway

Thanks to the sponsorship of six Alliance members, the HCA’s shared advertising campaign is off and running through the months of December and January.

AllCare VNA & Hospice, Circle Home, CareTenders, Comfort Keepers, Home Instead Senior Care and South Shore VNA will be featured on WBZ-TV and WSBK-TV as well as on the CBS-Boston website in certain areas of the state. Viewers will see shared ads from these six agencies and the Alliance along with a PSA featuring tips on choosing a home care provider.

The video clips of these ads are available below:

Ad 1: CareTenders – Comfort Keepers

Ad 2: Circle Home – South Shore VNA

Ad 3: All Care VNA – Home Instead Senior Care

Home Care Alliance Healthwatch PSA

Return to www.thinkhomecare.org.