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.

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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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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!

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Special Open Door Forum on F2F Template; Alliance Seeks F2F Data

CMS hosted a Special Open Door Forum call yesterday to provide an opportunity for physicians/practitioners, home health agencies and/or all other interested parties to provide feedback on both a paper clinical template and an electronic clinical template for face to face documentation.

Many questions were raised and often the presenters were unable to answer the audience’s questions; the presenters stated they would provide answers during at the April call. The PowerPoint presentation (see slide 5) raised many more questions on which physicians could actually certify homecare; the hospitalist or the community physician. Again the presenters were unable to clarify the regulation for the audience. The presenters were actually debating among themselves whether a discharge planner or physician’s staff could assist completing the documentation for the face to face. A caller confirmed that this was acceptable and CMS had already addressed this issue in the CMS Face to Face Questions, question number 8.

CMS is seeking public comment on this voluntary paper clinical template. Feedback and questions can be sent to:

Additional Special Open Door Forum calls on the templates will be held on April 8 and May 6, 2015, both at 1:00 PM Eastern Time.

In the Alliance’s continued advocacy on the Physician Face-to-Face Requirement, agencies that have ongoing appeals of claims denied for “invalid” F2F documentation are encouraged to send the number of denials, amount of money tied up in those claims, and the status of the appeals to James Fuccione at HCA.

We will share these data by congressional district with the Massachusetts federal delegation so that they can follow up with CMS. Months after a letter was sent from US Senators from the New England region on the same subject, CMS has failed to respond and the Alliance wants to make sure this issue gets the attention it deserves.

Please send this information, along with any questions, to James Fuccione at the Alliance.

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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.”

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“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.

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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.

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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.

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HCAs Home Health & Hospice Emergency Prep Workbook Now Available

HCA’s new Home Health Care & Hospice Emergency Preparedness Workbook, co-published with RBC Limited, is now available!

The workbook incorporates all of the Emergency Preparedness requirements in the proposed new regulations recently developed by CMS, and includes a number of sample policies and tools to make compliance easier.

Barbara Citarella of RBC Limited will conduct a series of two webinars on August 27 and September 3 to discuss the proposed regulations and orient home health and hospice providers to the new manual.

You can purchase the Workbook and register for the webinars here.

Webinars will be held on the following dates:

Part I August 27, 2014
10:00 – 11:30 AM

Part II September 3, 2014
10:00 – 11:30 AM

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ODF for Home Health and Hospice, March 5th

The next Home Health, Hospice & DME Open Door Forum is scheduled for Wednesday,, March 5, 2014 at 2:00 PM

To participate by phone:

Dial: 1-800-837-1935 & Reference Conference ID: 71246014

Proposed Agenda

1. Opening Remarks

2. Announcements & Updates

  • Hospice and Part D
  • Hospice Claims Reporting
  • Hospice & CAHS
  • Hospice Quality Update
  • FY2015 and FY2016 reporting cycles
  • Hospice CAHPS survey
  • Home Health Quality Update

For details visit the ODF Website

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