Author: Anthony Troia

Assemblymember Gottfried, Chair of the Assembly Health Committee and New York’s longest-serving lawmaker, announced on Monday that he will be retiring at the end of 2022. He will not seek re-election. This means that the upcoming budget season, which is slated to kick off with the State of the State address on January 5, 2022, is going to be his last budget season. Providers are familiar with Assemblymember Gottfried, as he has been a champion and promoter of home care and fiscal intermediary services for decades. While it remains to be seen, Gottfried may seek to make a final push for his longtime causes, such as a single-payor healthcare system for New York, and an increase in the base wage for home care workers. With every seat in the New York Legislature up for re-election, the 2022 budget season promises to be an exciting one.

The DOH has released a FAQ document on the HCS pertaining to the annual statistical report. The FAQs address some of the commonly asked questions that LHCSA/FI “combination” entities may have in completing the report, newly operating LHCSA issues, administrator roles, and questions about specific forms. Providers should ensure that the designated representative of their agency is accessing the HCS and reviewing these questions as part of the reporting process. As a reminder, the statistical report must be filed by December 31, 2021. Monetary penalties begin to accumulate thereafter.

As part of President Biden’s investment and commitment to home care, New York State is slated to receive in excess of 1.4 billion dollars from the federal government over the course of the next two fiscal years. The funds will be distributed to qualifying providers in two phases. It is anticipated that the first payment, 361 million, will be made sometime between January 1, 2022 and March 31, 2022. The second – and larger – payments are slated for distribution sometime between April 1, 2022 and March 31, 2023.

The New York State Department of Health (“DOH”) has developed the eligibility criteria for these funds. The DOH’s plan, however, is subject to CMS approval.  The DOH has submitted its plan to CMS for approval, and CMS is expected to respond by January 3, 2022.

As proposed by the DOH, the top billing 1/3 of LHCSAs (approximately 250 agencies) have been selected for the first wave of funding, based on those agencies’ MLTC revenue from 2019.  FIs and CHHAs are not eligible for these funds. The State would determine the specific provider award amounts. MLTCs and MAPs would receive the “payment amounts per provider from the State” sometime before March 31, 2022. The plans would then have to pass this money, dollar for dollar, to the providers. There is no ability for plans to retain any portion of these funds.

The funds must be used by the awarded providers in State’s FY 22 and FY 23 to “strengthen their workforces and prepare for VBP arrangements with reporting to DOH.”

Insofar as the selection of providers, the DOH explained that only LHCSAs with managed care revenue that “meets or exceeds the revenue threshold in their respective regions” would be included in the class of recipients. The threshold was set by the DOH as the “66^th percentile of providers in each region based on provider revenue, meaning that the 1/3 of providers with the highest managed care revenue in each region would be included in the provider class.” The DOH has stated that the approximately 250 LHCSAs that had been selected for these funds account for 93% of the total Medicaid personal care spending in New York. The DOH also stated that each region was uniquely considered.

In describing the plan, and why the State chose to limit the awards to only 1/3 of the providers, the DOH stated that it “intended to send a message to providers.” It is not clear what that message is, but it seems that the distribution of funds to top-billing providers aligns with the State’s longstanding mission to consolidate and reduce the number of LHCSAs in New York State.

The list of the approximately 250 providers has not been published or shared by the DOH.

As we reported last week, Governor Hochul has announced new masking requirements for all businesses across New York State. Special rules, however, apply to healthcare settings.  As explained in a Department of Health-issued “Determination,”

1.   Healthcare settings:

• a.   Personnel: After careful review and consideration of CDC recommendations for face masks in healthcare settings regulated by the Department, I hereby adopt such recommendations, imposing them as requirements, where applicable. Accordingly, all personnel, regardless of vaccination status, in a healthcare setting (i.e., facilities or entities regulated under Articles 28, 36 and 40 of the Public Health Law) shall wear an appropriate face mask in accordance with applicable CDC exceptions, until this determination is modified or rescinded.
• b.   Visitors to Healthcare Facilities: After careful review and consideration of CDC recommendations, all visitors over age two and able to medically tolerate a face covering/mask shall be required to wear a face covering/mask in health care facilities, regardless of vaccination status, subject to applicable CDC exceptions, and until this determination is modified or rescinded.

Thus, LHCSAs’ and CHHAs’ employees must wear a mask at all times, regardless of vaccination status. Similarly, all visitors to healthcare providers’ offices must wear a mask.

To the extent a LHCSA also operates a FI, the masking obligation will apply to all employees in the office. In other words, “FI employees” will not be allowed to unmask if all are vaccinated while the LHCSA employees wear masks at all times (regardless of their vaccination status).

Conversely, for entities that are solely fiscal intermediaries, it appears that the general non-healthcare setting rule will apply and the fiscal intermediary will not be treated as a “healthcare setting” for purposes of the masking rules.  The general, non-healthcare, requirement per the Department’s Determination is for masks to be worn in all indoor public places unless the business requires proof of full vaccination against COVID-19 as a condition of entry. Per the FAQs (available here), the foregoing requirements apply to office environments. Thus, this means that in office-based and other covered businesses that do not require vaccination as a condition of entry, all individuals must wear face coverings at all times except when eating, drinking, or alone in an enclosed room.

As to enforcement, the guidance provides that “[a] violation of any provision of this measure is subject to all civil and criminal penalties, including a maximum fine of $1,000 for each violation” and that “[l]ocal health departments are being asked to enforce these requirements.”

We also remind New York City employers (such as fiscal intermediaries) that they will soon be subject to a mandatory vaccination requirements for their employees (with no masking or testing alternative) under a recent declaration by the Mayor.

If you have any questions about these requirements, please contact us.

Last night, Attorney General Letitia James announced that she was suspending her run for the Governor of New York. Through her Twitter account, James announced, “I have come to the conclusion that I must continue my work as attorney general.”  “There are a number of important investigations and cases that are underway and I intend to finish the job.” Her announcement was immediately praised by the Democratic Party Chairman, suggesting that Ms. James withdrew from the race at the urging of her own party.

As home care providers know, the Attorney General’s Office under Ms. James has for years focused on the home care industry, from Medicaid compliance to wage parity, paid sick leave, alleged worker exploitation, and general wage and hour compliance. It remains to be seen if Ms. James’ decision to withdraw from the race will have the effect of re-invigorating her investigations and focus on home care. Ms. James’s political aspirations might have been suspended for now, but she will no doubt continue to try and make a name for herself in furtherance of future political aspirations, and she could seek to make that mark through aggressive enforcement and investigations of healthcare providers, including home care.

Today, Gov. Hochul announced that masks will be required in all indoor public places across New York State unless businesses or venues have a vaccine requirement. The Governor stated that the mandate is being implemented to prevent a holiday surge of Covid-19 cases.

The new measure starts on Monday, December 13, and will be re-evaluated on January 15, 2022.

Businesses that ask for proof of vaccination can accept Excelsior Pass, Excelsior Pass Plus, SMART Health Cards issued outside of New York state, or a CDC vaccination card.

Businesses that implement a mask requirement must require all customers 2 years and older to wear a mask while indoors. Providers should ensure that they are enforcing the masking requirements for vendors and visitors to their offices and/or verifying vaccination status.