Author: James Fuccione

Notice of Observation Status Law Signed by President

Legislation requiring hospitals to notify Medicare beneficiaries when they are technically in an outpatient “observation” status was recently signed into law by President Obama.

The NOTICE ACT (Notice of Observation Treatment and Implication for Care Eligibility) requires hospitals to inform patients of their status when they are in observation, but not officially admitted, for more than 24 hours and classified as an outpatient. A written notice must, among other points, state that the beneficiary’s outpatient stay will not count toward the three-day inpatient stay required for the individual to be eligible for Medicare coverage of a stay a skilled-nursing facility. Hospitals will have until August 2016 to comply with the new law.

The NOTICE Act is good news for the home health agencies because tracking the status of the patient hospital stay proved to be a challenge. Patients were often unaware of whether their stay with the hospital was an inpatient admission or an observation stay leaving the HHA uncertain if Transfer/ROC OASIS were needed. Now with the implementation of this notice the HHA will be able to determine an observation stay and know that a Transfer/ROC OASIS is not needed. An Agency may choose to complete a “Significant Change in Condition” OASIS (Reason for Assessment, 5- Other follow-up) based on their agency policy.

Return to www.thinkhomecare.org.

Advocacy Alert: Urge your US Rep to Support HHPPS Proposed Rule Letter

With another $350 million cut to Medicare home health payment and Massachusetts selected as one of nine states for a “Value-Based Purchasing” Pilot, it is important that a strong message is sent to CMS and that means getting strong support from our state’s Congressional Delegation.

A new message is posted on the Home Care Alliance’s Advocacy Center that you can easily send to your federal elected representative to gain support for a Congressional sign-on letter to CMS. Just fill out the contact information, hit “send” at the bottom of the page, and the message will automatically go to your member of Congress.

The letter, which can be seen below, voices concern about the burdensome payment reductions and severe Value-Based Purchasing penalty in CMS’ proposed rule. Home health care champion Congressman Jim McGovern is co-leading the effort – known as a “dear colleague” letter in Congress – and the Alliance continues to appreciate his ongoing support of our issues.

Here is the text of the letter:

The Honorable Andy Slavitt
Acting Administrator
Centers for Medicare and Medicaid Services
7500 Security Boulevard
Baltimore, Maryland 21244-1850

Dear Acting Administrator Slavitt:

We are writing today to express our concern with Medicare home health funding cuts set forth in the Home Health Prospective Payment System (HHPPS) proposed rule for 2016. Home healthcare is a vital service that allows millions of the most vulnerable senior citizens and disabled individuals to receive the treatment they need in the cost-effective environment they most prefer – their home. As a result, we request a careful reconsideration of two of the draft policy changes in light of their anticipated impact on homebound Medicare beneficiaries and the home health delivery system upon which they depend.

First, we are concerned with the draft HHPPS rule’s proposal to cut home health payment rates by an additional 1.72 percent in 2016 and again in 2017. This proposed “case mix” reduction is of concern because it appears to be based on a 2000-2010 case mix weight change analysis rather than changes in the condition of beneficiaries during the 2012 to 2014 period that Medicare proposes to address.

Second, the draft rule proposes a Home Health Value-Based Purchasing (HHVBP) program that would impose an incentive/penalty range of as much as 5 to 8 percent over a 5-year period. We are very concerned with the aggressive nature in which the Secretary intends to ramp up HHVBP. Implementing a VBP program with a 5 percent withhold that increases to 8 percent just three years later is too much too fast. We are also concerned that the Secretary is proposing 25 measures for use in the HHVBP— far too many for providers to focus on.

In closing, we wish to express our concern that, in its current form, the draft rule may drive Medicare reimbursement to unsustainable levels for thousands of small, rural and other home health providers across the country, impacting the care upon which many of the most vulnerable Medicare beneficiaries, as well as their communities, depend. As a result, we request that the Agency reconsider its proposed case mix cut until it evaluates the specific causes of case mix weight changes from 2012 to 2014 and consider a more reasonable implementation schedule for the proposed withhold amount in the HHVBP program.

We thank you for your attention to this critical matter.

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Advocacy Alert: Help Advance Private Home Care Oversight

Last December, the Massachusetts Department of Labor Standards (DLS), which is a division of the Executive Office of Labor and Workforce Development (EOLWD), finalized regulation that removes private pay home care agencies from the Employment Agency Regulation.

This change, while a welcomed clarification, has left private home care agencies without any state oversight, which means that anyone can open up an agency and can start accepting out-of-pocket payment for providing non-medical supportive services to individuals in their home.

Governor Charlie Baker’s administration has provided a unique opportunity to advocate for reasonable state oversight of private home care agencies. Specifically, they are seeking feedback on how to clarify and streamline Massachusetts regulations across the board via a special webpage called “A Clearer Code.”

The Home Care Alliance of Massachusetts is asking agencies, home care workers and advocates to take the following steps to help home care consumers gain the protection and peace of mind they deserve:

Visit this website: http://www.mass.gov/anf/a-clearer-code-regulatory-reform.html…

…And please fill out the online form as follows:

  • Name (optional):
  • Company/Organization (if applicable) (optional):
  • Address (optional):
  • Primary Phone (optional):
  • Email (optional):
  • CMR Number: 429 CMR 10.00
  • General Regulatory Themes: Select either Elders, Health Care, or Licensing & Permitting
  • Please list the Agency or Agencies affiliated with this regulation: Executive Office of Labor & Workforce, Executive Office of Elder Affairs, Office of Consumer Affairs & Business Regulation, Executive Office of Health and Human Services.
  • Describe the regulatory issue or observation: When this regulation was amended, it dropped state oversight of private-pay home agency services. There are now literally hundreds of private home care agencies operating unlicensed and unregulated. Massachusetts consumers, especially the elderly, deserve better.
  • Suggestions for easing regulatory compliance: We need the Governor to name a commission to study and make recommendations on private home care licensure standards as soon as possible. Home care agencies and the Home Care Alliance of Massachusetts needs to be at the table to determine the proper direction for quality services, ethical business practice and consumer protection for vulnerable seniors.

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HCA Announces Sample Policies for Earned Sick Time Compliance

New regulations on paid earned sick time went into effect on July 1st and many companies, if not entire industries, are working to follow the rules.

The Home Care Alliance has kept member home care agencies up to date with analysis on regulation changes and informational webinars complete with Q & A’s, but some agencies have asked the HCA for sample earned sick time policies.

Fortunately, Alliance staff and a task force of HR directors from member agencies drafted such a sample policy, which was reviewed by attorneys Allyson Kurker and Margaret Paget of Kurker Paget LLC. In addition, the Attorney General’s Office (AGO) who was responsible for the regulation itself has posted a sample policy on their Earned Sick Time webpage and the Retailers Association of Massachusetts (RAM) also have publicly available policy templates that may be useful to home care agencies.

These resources are available below:

Return to www.thinkhomecare.org.

CMS Announces Proposed Home Health PPS Update for 2016; Massachusetts Included in Value-Based Pilot

Massachusetts is one of nine states randomly assigned to pilot the Home Health Value-Based Purchasing (VBP) model, which is included in the calendar year 2016 Medicare Home Health PPS Rule released by CMS.

VBP will test whether incentives for better care can improve outcomes in the delivery of home health services.  The model will apply a payment reduction or increase to current Medicare-certified home health agency payments, depending on quality performance, for ALL agencies delivering services within the nine selected states.  Payment adjustments will be applied on an annual basis, beginning at five percent and increasing to eight percent in later years of the initiative.

According to CMS, the model is designed so there is no selection bias, participant states are representative of home health agencies nationally, and there is sufficient participation to generate meaningful results among all Medicare-certified home health agencies nationally.

The proposed rule implements the third year of the four year phase-in of the rebasing adjustments to the HH PPS required by the Affordable Care Act.  The CY 2016 downward adjustment to the national standard episode rate is $80.95.  CMS also proposes to recalibrate the HH PPS case-mix weights for CY 2016, which would be the second year of recalibration and identical to CY 2015.

In addition, the proposed rule includes a decrease to the national, standardized 60-day episode payment amount by 1.72 percent in each of CY 2016 and CY 2017 to account for nominal case-mix coding intensity growth unrelated to changes in patient acuity between CY 2012 and CY 2014.  CMS will also be updating the HH PPS payment rates by the home health payment update percentage, 2.3 percent in CY 2016.

For the Home Health Quality Reporting Program, in keeping with the requirements of the Improving Medicare Post-Acute Care Transformation Act of 2014 (the IMPACT Act), CMS is proposing one standardized cross-setting measure for CY 2016 under the skin integrity and changes to skin integrity domain.  Measures for the IMPACT Act’s other domains will be addressed through future rule-making, although CMS is seeking feedback on four future, cross-setting measure constructs to potentially meet requirements of the IMPACT Act.

In order for home health agencies to avoid a two percent reduction in their annual HH payment update percentage, the rule further proposes to require all home health agencies to submit both admission and discharge OASIS assessments for a minimum of 70 percent of all patients with episodes of care occurring during the reporting period starting July 1, 2015.  CMS proposes to incrementally increase this compliance threshold by ten percent in each of the subsequent periods (July 1, 2016 and July 1, 2017) to reach 90 percent.

CMS has prepared a fact sheet about the proposed rule and a press release about the Home Health Value-Based Purchasing model.  The proposed rule will be officially published in the Federal Register on July 10, 2015. CMS will accept comments on the proposed rule, including comments about the Home Health Value-Based Purchasing model, until September 4, 2015.

The Alliance will closely examine the Value-Based Purchasing proposal — as well as all other aspects of the proposed rule — and will present a briefing for members within the next weeks.

We will work with the state associations in the other states chosen for the pilot to advocate for any needed changes to the program to protect agency cash flow and operational integrity.  We will also develop educational sessions for our members over the next months.  Stay tuned!

Return to www.thinkhomecare.org.

Conference Committee Announces Final Budget With Little Support for Home Care

The legislature’s state budget conference committee, made up of six members of the House and Senate’s respective Ways & Means Committees, decided on a final version of the fiscal year 2016 Massachusetts budget.ma budget pie chart pic

The $38.1 billion plan that is being sent to the Governor for his approval does not include the Home Care Alliance’s priority language that created a special commission to study and recommend licensure options for private care agencies. The commission language was included in the Senate’s version, but not the House, which left the conference committee to decide its fate.

The conference committee also did not include an expansion of income eligibility for services ordered through Aging Service Access Points (ASAPs) that the Alliance also supported.

One bright spot was that an advisory council on “mobile integrated healthcare” (MIH) was passed and includes a representative of the Home Care Alliance. The language defines MIH as:

a health care program approved by the department [of public health] that utilizes mobile resources to deliver care and services to patients in an out-of-hospital environment in coordination with health care facilities or other health care providers. Such medical care and services include, but are not limited to, community paramedic provider services, chronic disease management, behavioral health, preventative care, post-discharge follow-up visits, or transport or referral to facilities other than hospital emergency departments.

Other notes from a preliminary analysis of the Conference Committee’s budget include the following:

  • The MassHealth Managed Care line item continued to grow by another $770 million while MassHelath Senior Care, which governs the Senior Care Options program, dipped by more than $10 million.
  • In the Elder Affairs line items, State Home Care Program “Purchased Services” was set by the conference committee at about $2 million below FY15 spending, although the Enhanced Community Options Program (ECOP) grew by nearly $5.6 million.
  • Thanks to the efforts of home care supporter Senator Sal DiDomenico, the funding for the Pediatric Palliative Care Network was raised to $1.8 million from $1.5 million in FY15, but that’s still inadequate to serve the number of children currently on a waiting list for such care.
  • The Department of Higher Education’s “Nursing and Allied Health Workforce” line item ended up being level funded at $200,000 after being zeroed out by the Governor earlier this year.

Return to www.thinkhomecare.org.

PCA Contract Spurs Clarifying Statement from the Alliance

Prior to the June 30th deadline for the state to negotiate a new contract with independently-hired and consumer-directed Personal Care Attendants (PCA), a deal was struck with the Governor’s administration for an immediate 30-cent raise and a “pathway” towards a $15 per hour wage in three fiscal years. Those annual contracts for future fiscal years still have yet to be negotiated.

With this announcement, the Home Care Alliance released the statement below to legislators clarifying that this wage boost is only for PCAs and not for homemakers or home health aides paid via agencies by MassHealth.

We encourage home health agencies and advocates to forward this to their legislators to highlight the fact that MassHealth has not increased home health aide rates, nor has it increased skilled visiting nurse rates.

Contract is a Win for Personal Care Attendants, Not Home Health Care

HCA Seeks Better Pay for All Home Health Aides

BOSTON, MA – This week, workers in the state-funded Personal Care Attendant Program (PCA) negotiated a new contract with the Commonwealth that gives them an immediate 30-cent raise and puts PCAs on a path to $15 per hour. This contracted raise will not apply to home health aides or personal care homemakers that work in the MassHealth program or the State Home Care Program administered by the Executive Office of Elder Affairs (EOEA).

“The Home Care Alliance supports any direct care workers getting a higher wage, but people should know that home health aides are paid through home health agencies via rates set by MassHealth. MassHealth has not increased home health aide payment rates in eight years,” said Home Care Alliance Executive Director Patricia Kelleher. “Home health aides generally have a higher level of education and training than PCAs and care for medically complex patients. Yet, they are on a path to earn less because of the state’s inaction on payment rates.”

Even though they are paid by state funds, PCAs are hired directly by the individuals they serve and primarily provide assistance with activities of daily living for disabled adults. Home health aides work for home health care agencies that provide similar services, often as part of a care team that includes a nurse managing a plan of care overseen by a physician.

The Home Care Alliance has long advocated for higher payment rates from MassHealth to home health care agencies. Despite not getting an increase since 2007, most agencies have been increasing worker wages and already provide benefits to their home health aides.

 “The Alliance believes that raising wages for direct care workers in the community strengthens the ability of people to remain at home no matter what their needs. However, the Alliance also believes that there is a continuum of home care and that the entire continuum should be equally recognized and supported, “added Kelleher. “MassHealth needs to support agencies that employ home health aides so that reality of state support for these workers matches the headlines.”

Return to www.thinkhomecare.org.

Earned Sick Time Final Regulation Summary and Analysis for Home Care Agencies

The final regulations on paid Earned Sick Time were released by the Attorney General’s Office (AGO) on Friday, June 19th with a number of substantial changes from the proposed regulations.   (The AG was charged with developing regulations to implement the new law – which was passed via a binding ballot question in 2014.)

The Home Care Alliance is pleased that most of the association’s comments were taken into consideration and the HCA thanks member home care agencies for their questions, concerns and suggestions. It is such involvement that allows the Alliance to better represent agencies and work for better results through our advocacy efforts.

Below is a basic summary of changes that home care agencies inquired about that were made between the proposed and final regulation.

Additionally, the Boston law firm Donahue, Barrett & Singal posted an analysis available to the public that is an excellent guide to the Earned Sick Time regulations. The Alliance has also partnered with Kurker Paget, LLC on a webinar for HCA members and further details and interpretation may become available.

Summary of Regulation Changes:

Section 33.01: Purpose, Scope and Other General Provisions

  • AGO added that “employees may choose to use, or employers may require employees to use, concurrent earned paid sick time…to receive pay when taking other statutorily-authorized leave that would otherwise be unpaid.”

Section 33.02: Definitions

  • AGO explained that “benefit year” is used interchangeably with “calendar year.”
  • The term “Calendar Year” was simplified to stand for any consecutive 12-month period as determined by the employer.
  • The term “Date of hire” was simplified to mean the employees “first date of actual work.”
  • Much more detail of employees and employers exempt from the law. Clarification that PCA’s are covered.
  • Regular hourly rate is newly defined as “the amount that an employee is regularly paid for each hour of work.”
  • “Same hourly rate” is clarified to mean employees regular hourly rate or, for employees earning varying rates from the same employer, either
    • The wages the employee would have been paid for the hours absent during the use of earned sick time if the employee had worked, or
    • A blended, weighted average of all regular rates over the previous pay period.
    • A clarification made in response to HCA’s comments for employees paid “fee-for-service,” the same hourly rate means a reasonable calculation of the wages or fees the employee would have received for the piece work, service or part thereof, if the employee had worked.
  • A clarification relative to “overtime, holiday pay, or other premium rates” that states “where an employee’s hourly regular hourly rate is a ‘differential rate,’ meaning  a different wage rate paid for the same work performed under differing conditions (e.g. a night shift), the ‘differential rate’ is not a premium.

 Section 33.03: Accrual and Use of Earned Sick Time

  • The AGO clarified that 40 hours per benefit year is the cap under the law. Employees  cannot accrue more unless the employer’s policy allows.
  • Employees accrue sick time only on hours worked, not while on PTO.
  • AGO added “Earned sick time may not be invoked as an excuse to be late for work without an authorized purpose under the regulations.”
  • AGO added “An employee may not accept a specific shift assignment with the intention of calling out sick for all or part of that shift.”
  • AGO added “Employers and their fee-for-service employees may arrange to make up hours during the same or next pay period.
  • AGO clarified “If an employee is exhibiting a clear pattern of taking leave on days just before or after a weekend, vacation, or holiday, an employer may discipline the employee for misuse of earned sick time, unless the employee provides verification of authorized use” under the regulation.

Break in Service

  • Regarding “Break in Service,” the AGO heard the Home Care Alliance’s concerns and shortened the timeline an employee has a right to use any unused sick time following “a break in service of up to four months.” However, following a break in service of between four months and one year, “an employee shall maintain the right to use earned sick time accrued before the break in service” if the unused time equals or exceeds 10 hours.

Transition Year/Safe Harbor

  • AGO clarified the “Transition Year/Safe Harbor” provision for employers with part time staff and per diem staff.
    • These employees must either accrue paid time off at the same rate as covered full time employees or receive prorated “lump sums” of paid time off.
    • If an employee is compensated other than on an hourly or salaried basis, the employee must accrue or receive lump sum allocations based on “a reasonable approximation of hours worked.”

 Section 33.06: Documentation of Use of Earned Sick Time

  • AGO clarified that an employer may require written documentation for an employee’s use of earned sick time that:
    • Exceeds 24 consecutive scheduled work hours;
    • Exceeds 3 consecutive days on which the employee was scheduled to work;
    • Occurs within 2 weeks prior to an employee’s final scheduled day of work before termination of employment, except in the case of temporary employees;
    • Occurs after 4 unforeseeable and undocumented absences within a three-month period.
  • AGO clarified that “health care providers may require employees making any use of earned sick time during local, state or federally declared emergencies to provide written documentation from a medical provider substantiating its use and to follow additional notification procedures set forth by the employer.” The employer may discipline the worker if they fail in this regard.

Fitness for Duty

  • AGO clarified that “an employer may require an employee to provide a ‘fitness-for-duty’ certification, a work release, or other documentation from a medical provider before an employee returns to work after an absence during which earned sick time was used if such certification is customarily required and consistent with industry practice or state and federal safety requirements and reasonable safety concerns exist regarding the employee’s ability to perform duties.”
    • “Reasonable safety concerns” means a reasonable belief of significant risk of harm to the employee or others.

Section 33.07: Allowable Substitution of Employers’ Paid Time Off

  • AGO clarified that “an employer’s own paid time off, vacation, sick leave, or other policy may be substituted for earned sick time so long as 40 hours of time off is provided under the policy, or such lesser amount as each employee might earn if the employer were not using the substitute policy” and the employees can use PTO for the same purposes under the same conditions as outlined in the regulation.

Return to www.thinkhomecare.org.

Fallon Total Care Dropping Out of ‘One Care’ Program

The state’s Executive Office of Health and Human Services (EOHHS) announced that one of the three health plans managing health care for dually eligible ages 21 to 64 through the One Care Demonstration Program will be dropping out.

As of September 30, 2015, Fallon Total Care will be parting ways with the capitated financial alignment program, which will leave Commonwealth Care Alliance and Network Health as the remaining plans. Fallon Total Care provides One Care coverage in Hampden, Hampshire, and Worcester counties to approximately 5,475 individuals and represented the second largest enrollment of the three plans. Commonwealth Care Alliance, as of the May 2015 enrollment report, was handling 10,305 dually eligible individuals.

“MassHealth assures members who are currently enrolled with Fallon Total Care (FTC) that we will work hard to ensure as smooth a transition as possible, working with current members, FTC, the other One Care plans, our partners at CMS, advocates, and the One Care Implementation Council,” stated MassHealth in a brief statement. “One Care members will not lose their MassHealth or Medicare, and all members will have continuous access to health care services, supportive services, and medications.”

MassHealth also promised further updates on the transition and did not share any reasoning for Fallon Total Care departing the One Care Program.

Return to www.thinkhomecare.org.

Advocacy Alert: Urge FY16 Budget Conference Committee to Support Home Care

The House and Senate have formed a six-member “conference committee” that will merge the two budget proposals into a final fiscal plan for the state. Agencies and advocates can help get home care included in the reconciled budget by sending a message to the committee.
Work is ongoing, but must be completed by the beginning of the new state fiscal year on July 1st so time is limited to send an email. The House Conference Committee members are Representatives Brian Dempsey (D-Haverhill), Stephen Kulik (D-Worthington), and Todd Smola (R-Warren) while the Senate  members include Senators Karen Spilka (D-Ashland), Sal DiDomenico (D-Everett), and Vinny deMacedo (R-Plymouth).
Specifically, the Home Care Alliance is pushing the inclusion of a special commission to study state oversight options and minimum standards for private pay home care agencies. The Alliance is also supporting other amendments to expand access to home care services for seniors and also to create a comprehensive and collaborative state plan for Mobile Integrated Health.
The message itself can be viewed before sending and outlines the items that the Alliance is supporting. They include the following:
  • Senate Outside Section 90 as amended: Private Home Care Agency Study
    • Private-pay home care agencies across the state that provide mostly non-medical support services in the home have no state oversight and a study commission is needed to determine the best solution.
    • This commission will make recommendations on licensure standards and potential quality measures that will protect consumers and create a level playing field in the industry.
  • House Amendment #336: Mobile Integrated Healthcare
    • Recognizing the success and utility of existing “community paramedicine” programs on a smaller scale, this language ensures that the Department of Public Health and stakeholders in the public safety and healthcare communities convene to determine the best possible model of “mobile integrated health” for Massachusetts.
  • Senate Amendment #747: Expanding Eligibility for Home Care Services
    • This language raises the Elder Affairs home care program income eligibility limit to 300% of the federal poverty level ($35,010 in CY 2014), and requires all home care enrollees who are not on MassHealth to make a copayment towards the cost of their services on a sliding fee basis.
    • The program currently has a top income limit set at 224% of the FY 15 federal poverty level ($26,561). Raising home care to 300% of FPL allows the program to serve the “near poor” who are currently excluded.

Return to www.thinkhomecare.org.