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.

HCA Blasts Governor for Pulling MassHealth Rate Increase

After years of working with MassHealth on an update to home health care payment rates, and after learning that the rate increase was set, the Governor pulled the payment boost as part of his recent budget-balancing plan.

The Home Care Alliance delivered a letter to the Governor blasting the decision as part of a “failure to recognize home health care as a vital part of the health care continuum.” The letter noted that rates have not been increased since 2007 and were cut in 2008 for some of the state’s most vulnerable patients that receive home health care services. At that time, payment was cut by 20 percent for services lasting beyond 60 calendar days of care. This, according to the letter, essentially means that “agencies are being reimbursed in 2014 at rates set in 2007 and cut in 2008.” Moreover, the rates were already well below the cost of providing care that brings MassHealth savings by preventing or delaying costlier facility-based care.

Part of the hand-off to incoming Governor-elect Charlie Baker was to slash a state budget deficit of $239 million. From that amount, $68.5 million came from MassHealth services. Although MassHealth home health services were not directly cut, the payment rate being pulled was a blow to agencies and advocates that heard only a week earlier that the rate increase was set for March 1, 2015.

The administration had planned for a $8 million increase, although it was unclear how that funding was going to be implemented.

“Due to recent revenue shortfalls, agencies across state government were required to make difficult choices in order to maintain a balanced budget,” said Health and Human Services spokesman Alec Loftus in a statement to State House News Service. “We took a thoughtful approach to ensure that our most critical programs that help children, families, veterans and our most vulnerable populations are protected.”

As with 2008, the “thoughtful approach” did not include the cost-efficiency home health services bring to the table. Nor does it take into account the money agencies lose every time a nurse goes to a patient’s home to provide care because the cost of providing services far exceed reimbursement.

The Home Care Alliance will continue to make MassHealth payment a policy priority through the state budget process.

Return to www.thinkhomecare.org.

New England’s Senators Urge Action on ‘Face-to-Face’ Concerns

US Senators representing the New England states have stepped in to send a letter to CMS regarding the onerous medical review process relative to the Physician Face-to-Face Requirement being undertaken by National Government Services (NGS), which is the Medicare Administrative Contractor (MAC) for the region.

The state home care associations in the region, including the Home Care Alliance, worked together to draft the letter, gather data, and mobilize agencies to ask that Senators sign on to the letter.

The letter to CMS Administrator Marilyn Tavenner convey that the reviews and unjustified claim denials could “jeopardize seniors’ access to home health care” and that any measures meant to attack fraud and abuse should be clear, consistent and not threaten a beneficiary’s ability to receive needed care. The letter also highlights that, in some cases during 2014, withheld and denied reimbursements have exceeded the cost of a two-week payroll for some agencies.

While acknowledging the CMS final rule that changes the Face-to-Face Rule’s narrative requirement, the letter urges the following:

  • Explain what additional steps CMS will take to better ensure the clarity of the F2F regulations to prevent any further inconsistent denial of claims across the country;
  • Describe how you will ensure that patient care will not be compromised while the appeals of F2F denials are being considered;
  • Provide us with a current list of the outcomes of Medicare home health F2F denials and appeals across the country; and
  • Consider the feasibility of working with home health agencies to reopen or settle claims related to F2F in a manner that is equally fair to both taxpayers and home health providers.  Such considerations could include analysis as to whether an agreement similar to the administrative agreement process recently offered by CMS to hospitals that have a high volume of backlogged claim denials would be appropriate for backlogged home health claims related to F2F.

Nine of the twelve US Senators representing the New England region signed on, including both Massachusetts Senators Elizabeth Warren and Ed Markey. The Alliance thanks them for their continuing support of home health care issues and particularly efforts to improve the Physician Face-to-Face Requirement.

Return to www.thinkhomecare.org.

Home Care Impacted by Governor’s Budget Cuts

With a new Governor coming into office in January and a $329 million budget shortfall, the Patrick Administration was forced to make reductions to close the deficit.

A large chunk of those cuts came at the expense of MassHealth, which makes up slightly more than half of the state’s $36.5 billion fiscal year 2015 budget. MassHealth officials contacted the Home Care Alliance to report that $68.5 million in reductions had to come from MassHealth alone and that a rate increase for home health agencies is no longer on the table for FY15.

The Home Care Alliance had seen hints that there finally would be a review of MassHealth home health care rates after years of being passed over. Rates were frozen in 2007 and one of the Patrick Administration’s first cuts were from home health services past 60 calendar days of care. The rate inexplicably dropped by 20 percent for patients who require longer-term home health care and that cut has not been revisited.

Also cut was $1.52 million from the Elder Affairs’ “Home Care Purchased Services” line item that will go into effect on December 1st at which time the waiting list for Aging Service Access Point (ASAP) services could go back into effect. Officials from Elder Affairs indicated the lowest priority level would be the only one impacted, which preserves those in the greatest need for care.

The bright spot is that the Home Care Alliance’s efforts to gain MassHealth reimbursement for telehealth provided by home health agencies is not impacted and plans to implement rates and guidelines is going on as planned. Moreover, home health rates are, more or less, remaining status quo and are not being reduced further. Nursing Home Supplemental Rates, for example, were slashed by $9.1 million.

A rate review for home health services remains a top priority and the HCA will continue to work with the legislature and MassHealth on improving payment.

Return to www.thinkhomecare.org.

Boston Globe Names HCA Member Agencies as ‘Top Places to Work’

Home care is a tough and rewarding career, but now working for a home care agency could be one of the best places to be employed in general.

Several Home Care Alliance member agencies made a strong showing on the Boston Globe’s “Top Places to Work 2014,” where employee satisfaction surveys are used to judge how well companies treat their workers. This methodology propelled four agencies to be recognized on the annual list.

Comfort Home Care earned the top spot under the “large employer” category with an employee amount between 250 to 999.

In the “mid-size” company rankings with an employee number between 100 and 249 workers, three home care agencies made the list: Visiting Angels of Newton and Canton (#6), Able Home Care (#22), and Community Nurse & Hospice Care (#31).

Among the survey statements are the following:

■ Direction: “I have confidence in the leader of this company.”

■ Execution: “New ideas are encouraged at this company.”

■ Connection: “My job makes me feel like I am part of something meaningful.”

■ Management: “My manager cares about my concerns.”

■ Work: “This company encourages different points of view.”

■ Pay and benefits: “My pay is fair for the work I do.”

■ Engagement: “This company motivates me to give my very best at work.”

The Globe invited 1,660 companies to participate in the 2014 Top Places to Work survey. Of those, 366 organizations employing more than 336,000 people went all the way through the process, allowing the Globe to conduct a confidential survey of their workers.

The Home Care applauds the agencies in the “Top Places to Work” ranking and all agencies that keep people healthy and independent at home.

Return to www.thinkhomecare.org.

Join HCA in Celebrating National Home Care and Hospice Month

Each November, the Home Care Alliance joins agencies and organizations across the state and the country to celebrate National Home Care & Hospice Month by raising awareness of the value of home-based services and recognizing the clinicians and aides that deliver those services.

The Alliance is promoting a special Home Care & Hospice Month webpage with useful information for consumers explaining home care and how to find the right provider for a loved one or friend. The website also has info for home health and home care agencies about how to promote and celebrate the month-long event.

Especially useful for consumers is the “Home Care FAQ” page on the Alliance’s Home Care & Hospice Month website. Not only does this resource address questions like “How do I pay for Home Care?” and “How do I assess my needs?,” but also provides a list of questions for consumers to ask home care agencies. That way, consumers can be sure they’re getting the best possible care for themselves, a loved one or friend.

Social media is a big part of the HCA’s awareness campaign so the Alliance is asking that any agencies with clinicians or aides they would like to recognize can send a photo to James Fuccione with the person’s name and title so we can spotlight them on our Facebook page.

If your home care or hospice agency has any events or activities being carried out this month for the event, please let us know via Facebook and twitter (@thinkhomecare).

If you are a consumer, be sure to check out our Home Care & Hospice Month webpage!

Return to http://www.thinkhomecare.org.

Home Health Quality Date Updated on PatientCareLink Website

The latest available quality performance measures from Medicare’s Home Health Compare database for all Alliance member agencies was posted this week to the PatientCareLink website. The website is hosted by the MA Hospital Association, and the home health data is posted through a joint agreement between the Home Care Alliance and MHA.

To view the updated reports, visit www.patientcarelink.org and click on the “Healthcare Provider Data” tab and then “Home Health Agency Data” and then “Select an Agency.” The reports now incorporate data for the period July, 2013 – June, 2014, for all measures except measure #30, which is for the period of April, 2013 – March, 2014. In addition to each home care agency’s individual performance, the PCL pages also provide a comparison to the U.S. agency average scores.

“Providing high quality, safe patient care is a top priority for Massachusetts home healthcare agencies,” said Patricia Kelleher, Executive Director of the Home Care Alliance MA. “The home health data on the PCL site can be very useful to patients and their families. In addition, the partnership between hospitals and home health agencies on PCL furthers positive working relationships along the entire continuum of care, which can only improve patient safety and quality overall.”

Northeast Leadership Summit – Boston, 2015

The Northeast Home Health Leadership Summit, now in its 13th year, is the premier gathering of home health agency leaders from throughout the northeast. This cutting-edge conference is attended by home care executives seeking to take their operation to the next level by gaining insights on the latest trends in home care and leadership.

This year’s theme is Turn on Your Leadership Light and includes a superb lineup of speakers joining us in Boston on January 20 to 22, 2015. Registration for the conference is now open.

This program is sponsored by the following state home care associations: Connecticut Association for Healthcare at Home; Home Care & Hospice Alliance of Maine; Home Care Alliance of Massachusetts; Home Care Association of New Hampshire; Home Care Association of New Jersey; Home Care Association of New York State; New York State Association of Health Care Providers; Rhode Island Partnership for Home Care; Vermont Assembly of Home Health Agencies. If your organization is a member of one of these associations, you are welcome to take advantage of the member discount.

The venue for this year is the Colonade Hotel in downtown Boston.

Return to www.thinkhomecare.org.