Author: James Fuccione

Guest Blog Post: Discussing Care Choices on Advancing Illnesses

The following is a guest blog post from JoAnne Nowak MD who is Medical Director at Merrimack Valley Hospice. They are promoting a publication from the Massachusetts Department of Public Health, titled “Know Your Choices:  A Guide for Patients with Serious Advancing Illness.” The guide is meant to help healthcare providers adhere to a new state regulation that requires they inform patients with advancing illnesses about their care options and choices. This publication, which Merrimack Valley Hospice has adapted this publication for their use, lists the Home Care Alliance of Massachusetts as a resource and the Alliance encourages further promotion and distribution.

As a hospice and palliative care physician, I know that decisions about end of life care are deeply personal, and based on individual values and beliefs.  I’ve also seen first-hand how advance care planning can be an invaluable gift to those you love. Taking the time to talk with your family, close friends and your healthcare providers while you are in good health are all important steps in an advance care planning conversation.

In Massachusetts, a newly implemented regulation requires that all licensed hospitals, clinics, and long-term care facilities provide information about advance care planning, palliative care, hospice care, and other end of life care options to adults with serious illness.  The goal is to help patients start the conversation and make their end of life care wishes clearly known.

To help you begin, the Massachusetts Department of Public Health recently created “Know Your Choices:  A Guide for Patients with Serious Advancing Illness.” Merrimack Valley Hospice would like to make it easy for you to obtain this guide by making it available on our website because it contains important information about a variety of healthcare choices.  For your free copy, go to http://www.homehealthfoundation.org/patients-resources.  You can also call 978-552-4186 to receive a copy by mail.

It’s time for all of us to start the conversation.

JoAnne Nowak MD
Medical Director, Merrimack Valley Hospice

Return to www.thinkhomecare.org.

Advocacy Alert: Urge Legislators to Co-sponsor HCA Priorities

Today (Monday, Feb. 2nd) is the deadline for legislators to officially co-sponsor legislation, so NOW is the time to contact your local state legislators and ask them to formally support bills of importance!

The Alliance has worked to file two bills with home health champions in the legislature. One bill is re-filed from past years and is known as the “Nurse Delegation” bill, which would improve the efficiency of home health care services and save state funding by allowing home health nurses to delegate certain medication administration tasks to a trained home health aide, hospice aide, or certified nurse assistant.
The other HCA legislative priority is called An Act Strengthening the Quality and Efficiency of Home Health Services. The bill would establish a commission to study oversight options for the Commonwealth that fit our unique and highly-regarded health care system. The commission will also study MassHealth payment rates and methods to determine if there is a more efficient way to reimburse for both traditional home health services like skilled nursing and therapy, but also palliative care, Alzheimer’s/dementia, behavioral health/substance abuse, and chronic disease management.

Please contact your local state representatives and senators to urge them to sign on as co-sponsors of these two measures. At this early point in the legislative session the proposals haven’t been assigned bill numbers. Right now they are identified as House Docket 3151 (Nurse Delegation) sponsored by Representative Kay Khan and House Docket 1864 (Home Health Commission) sponsored by Representative Kate Hogan. Ask your legislators to contact the main sponsor of each proposal to add their names as co-sponsors.

  • Suggested Phone Script: “Hello, My name is ___________ from [home care agency, city/town]. Please co-sponsor House Docket 3151 filed by Rep. Khan and House Docket 1864, filed by Rep. Hogan to advance the quality and efficiency of home care services. If you have any questions, please contact the Home Care Alliance at 617-482-8830.”

If you’re unsure who represents you, please visit www.wheredoivotema.com/ and enter your contact info or visit the state legislature’s website to search by name or location. You can also contact James Fuccione at the Alliance for for more information.

Return to www.thinkhomecare.org.

MA Minimum Wage Regs Clarified by DLS

Responding to comments from the Home Care Alliance, among a list of other interested organizations, the Massachusetts Department of Labor Standards (DLS) released changes and clarifications to the revised minimum wage regulation (454 CMR 27.00).

The full list of comments from advocacy and business groups as well as the official response from the state was made available through the DLS website and in a notice to those that commented.

Here is a summary of comments from the HCA and the repsonses from DLS:

HCA Comment:

Concerning the proposed promulgation of 454 CMR 27.00 and repeal of 455 CMR 2.00, our agencies seek clarification on Hours Worked under section 27.04. It is noted that the employer and the employee may agree in writing to exclude meal periods and a sleeping period of not more than eight hours. It is unclear, however, if those meal periods are in addition to the eight hours of sleeping time. If a home care worker is in the home for a 24-hour period, it should be clearly defined outside of any written agreements pertaining to what time for meals and sleeping is counted and compensable.

DLS Response:

Meal periods are separate from sleeping time. The“not more than eight hours” refers to sleeping time.

HCA Comment:

We would also appreciate clarification of a reasonable length of those meal periods and whether they are permissible even though the worker is required to remain at the work site during the meal break.

DLS Response:

A meal period is bona fide if the employee is completely relieved from duty and is able to leave the
premises. The DLS will respond to inquiries regarding particular circumstances where the employee is unable to leave the work site for reasons outside the employer’s control. If the employee is able to eat a meal but is not relieved from duty, the time must be paid.

HCA Comment:

We have concerns relative to section 27.07 relative to Notice and Recordkeeping. The
discussion about posting a notice in the primary language of a cohort of any 5% or more of the employers workforce raises a question: How do employers discover employees’ primary languages? This appears to violate the rules of the MA Commission Against Discrimination, and moreover, an employee may have the right to refuse to answer.

DLS Response:
 
In response to comments from employer’s, the section is modified to require the translated notice if the language is commonly spoken among employees at the worksite. The requirement is not overly burdensome for employers since notices in different languages are only required if the translation is available from the Commonwealth.

DLS Change to Regulation:
 
27.07 is amended: The workplace notice shall be posted in English, and in any other language that is commonly spoken by five percent (5%) or more of the employer’s workforce and for which a translated notice in that language is available from the Commonwealth.

Other comments, responses and changes can be viewed in the DLS summary of testimony.

Industry Newsletter Publishes HCA-Issued Notices on Face-to-Face Rule

Home Health Line, a widely-distributed industry newsletter, has published notices to hospitals and physicians on Face-to-Face Requirement changes created by the Home Care Alliance of MA as a resource for home health agencies across the country.

The notices on the rule changes as of January 1, 2015 were distributed in a previous blog post and were created by HCA staff to help educate partners in the hospital and physician community about their responsibilities to ensure Medicare beneficiaries receive the necessary home health services.

The notices are also posted below and Home Health Line notes in a disclaimer that “The Home Care Alliance of Massachusetts created such a note to clear up confusion about face-to-face requirements, although it believes agencies and physicians still need more guidance from CMS.”

Return to www.thinkhomecare.org.

Federal Lawsuit on Face-to-Face Rule Moving Forward

In a major win for home health agencies across the country, a federal district court determined that they will hear a legal challenge presented by the National Association for Home Care & Hospice (NAHC) to the validity of the physician narrative portion of the face-to-face requirement.

According to NAHC, the court issued an order denying Medicare’s effort to have the lawsuit dismissed by the court. The face-to-face requirement (F2F) was troublesome and frustrating from the outset as CMS released no standardized form for providers to follow and provider education was insufficient at best. It took constant advocacy and education on the state and local levels and strong lobbying on the federal level from state and national home care associations and agencies to even call attention to the problem.

The physician narrative where physicians must write a detailed account of patient eligibility for home health care services proved to be the paramount concern. Although the new final rule effective 1/1/2015 removes the narrative piece of the requirement, NAHC will continue to litigate the dispute to address the past claim denials and those denials that may still come involving home health services provided prior to January 1, 2015. If the lawsuit is successful, Medicare would be required to reopen and pay any claim previously denied for an insufficient narrative and stop any further claim reviews related to the narrative requirement.

NAHC and the Home Care Alliance continue to advise home health agencies to consider appealing any narrative-related claim denials while the lawsuit is progressing. Such action will preserve the opportunity to have the claims reviewed by Administrative Law Judges and also allow for easy identification of claims that may be subject to reopening if the lawsuit is successful.

The Alliance will also continue to provide education and updates on the new rule, including an upcoming webinar in early February. The Alliance helped lead the effort on a letter from New England Senators to CMS on F2F reviews and is out front with notices to physicians and hospitals on the recent rule changes.

Return to www.thinkhomecare.org.

“40 Hours Is Full Time” Act Reintroduced in Senate, Advances in House

With a significant number of home health agencies classified as large employers under the Affordable Care Act (ACA), home health advocates have convinced lawmakers to reintroduce legislation that would help agencies avoid penalties for failing to offer health insurance to part time workers. The US House of Representatives voted to advance their version of that legislation on January 8.U.S. Capitol Building

Currently, the provision in the Affordable Care Act (ACA) that imposes penalties on employers with more than 50 full-time equivalent employees for not providing health insurance for their “full time” workers defines an employee working just 30 hours a week as full time. This definition of full time is out-of-keeping with standard employment practices and could cause significant financial burdens for many home care agencies. That mandate is not active until 2016, but later this year, the federal healthcare law will require that companies with 100 or more employees must offer coverage to most workers or face a financial penalty.

The House voted 252-172 to approve their version of the bill with 12 Democrats joining Republicans, which is not enough for a “veto proof” majority.

On the US Senate side, a hearing on Senators Susan Collins (R-ME) and Joe Donnelly (D-IN) “40 Hours Is Full Time Act” bill is planned for later this month.

Return to www.thinkhomecare.org.

Palliative Care Legislation Sent to Governor’s Desk

Legislation supported by a coalition of health care organizations and advocacy groups, including the Home Care Alliance, that would improve consumer education and provider quality around palliative care has made it to the Governor’s desk on the last day of the 2013-2014 legislative session.

House Bill 4520 sponsored by Representative Chris Walsh, if signed into law by the Governor, would create a State Advisory Council on Palliative Care and Quality of Life. This interdisciplinary group would consult with and advise the Department of Public Health on matters related to the establishment, maintenance, operation and outcomes evaluation of palliative care initiatives in the Commonwealth.

The bill also seeks to establish a Palliative Care Consumer and Professional Information and Education Program that would look to maximize the effectiveness of palliative care initiatives in the Commonwealth by ensuring that comprehensive and accurate information and education about palliative care is available to the public, health care providers and health care facilities.

Additionally, the Massachusetts Department of Public Health would be charged with publishing on its web site, information and resources including links to external resources about palliative care for the public, health care providers, and health care facilities. This would include, but not be limited to, continuing education opportunities for health care providers; information about palliative care delivery in the home, primary, secondary, and tertiary environments; best practices for palliative care delivery; and consumer educational materials and referral information for palliative care, including hospice.

The American Cancer Society’s Cancer Action Network has led the charge on this effort, which Home Care Alliance has supported throughout the legislative process. The bill promotes the idea that palliative care is appropriate for patients with advanced illnesses or conditions that employ a team-based and patient-centered approach that takes into account a person’s emotional and mental well-being and strives to improve the quality of life for both patient and family.

More updates on this issue will follow.

Return to www.thinkhomecare.org.

DLS Posts Notice for Long-Term Care Insurers

As of December 19, the Massachusetts Department of Labor Standards (DLS) no longer requires private-pay home care agencies to register for licenses. Several Alliance members report that DLS has already rejected and returned their licensure renewal applications.  DLS has also posted a notice to long term care insurers on their website in response to concerns raised about recent regulations proposed separately by the Division of Insurance (DOI).

In the absence of a licensure or registration standard, the DOI regulators have indicated they will issue a regulation that leaves the door open to future state oversight policies. The Alliance has spoken with one major long-term care insurance company that has said this change would not have an impact on getting their clients the home care services they need since many states they operate in lack licensure standards as well. The insurer said that they would simply seek a general business license through the Secretary of State’s office and may potentially look to other accreditations and credentials.

The fear that private pay home care agencies would not receive long-term care insurance reimbursement in the void left by the recent DLS regulations appears to be less of a concern that previously believed. However, the Home Care Alliance will continue to monitor the situation and will work with private-pay home care members, the Home Care Aide Council and other organizations in pushing for a solution at the legislative level.

Return to www.thinkhomecare.org.

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.