Articles Archives - Page 3 of 20

NY Senator and Chair of Committee on Disabilities Introduces Bill to Repeal and Replace the CDPAP RFO

Posted on February 18, 2022 | by Sam Sadovic

New York Senator John Mannion, the Chairman of Committee on Disabilities, has introduced a bill to repeal and replace the CDPAP RFO with a registration process for all fiscal intermediaries that are operating as of April 1, 2022. The proposed bill, if passed, would allow fiscal intermediaries that did not receive a RFO award to continue operating. Instead of complying with the RFO results, all fiscal intermediaries would instead be required to comply with the new requirements that have been proposed. Some of these new requirements in the Mannion bill include:

All fiscal intermediaries would have to register with the Department of Health (“DOH”) prior to providing fiscal intermediary services. The DOH would not deny registration to an existing fiscal intermediary in good standing as of April 1, 2022.
A registration would be effective for 5 years.
The fiscal intermediary would need to pay a registration fee that will not exceed $5,000.
A fiscal intermediary applying for an initial registration would require the applicant to attest to various items, including that the applicant is able to “appropriately” serve consumers, and can demonstrate compliance with all applicable laws. In addition, the fiscal intermediary would have to establish several of the factors that were used in the RFO, such as the ability to maintain a local presence and maintain and review a disaster preparedness and emergency plan, have an effective
organizational structure with qualified administrative staff, ensure appropriate cultural and linguistic competencies to serve consumers and personal assistants, and maintain written policies and procedures.
The Commissioner would have the right to impose penalties on any fiscal intermediary that fails to comply with the registration requirements and terminate the registration of any fiscal intermediary that the Commissioner finds is endangering the welfare of the public.
Registered fiscal intermediaries would be required to submit a cost report and a report listing quality measures and other data, including the number of timely processed payroll cycles, the number of accurate paychecks, the number of days to onboard a personal assistant, the total number of referrals made each month by a MCO or a LDSS, information related to social determinants of health, cultural or racial disparities or related information, and information about complaints filed with the fiscal intermediary or against the fiscal intermediary.
The fiscal intermediary would be required to comply with various data privacy and security laws and report annually the direct care and administrative costs of personal assistant services.

We will keep you posted about the progression of this bill as the budget season moves to conclusion by April 1, 2022. In the meantime, clients who have questions about the implications of this proposal on their RFO award or their status as a non-RFO recipient are welcome to reach out to us.

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Quarantine and Isolation Rules for Healthcare Personnel are Revised, Again

Posted on February 11, 2022 | by Sam Sadovic

The State DOH has once again updated the isolation and quarantine requirements for healthcare staff (see here). The changes largely affect individuals who are exposed but not infected.

For infected healthcare staff, employers in “contingency” phases are required to provide five days of leave to employees, regardless of vaccination status of the employee, and employees can return to work on day 6 if they are asymptomatic or have mild-moderate symptoms.

For employees who were exposed, the DOH instructs that such healthcare personnel, if fully vaccinated (including boosted), will have no work restrictions if the agency is in a contingency phase. (Most home care providers are in that phase, but each agency should evaluate its own circumstances). If the agency is in a “normal” phase (and not in contingency), then an exposed worker can only return to work upon testing negative on days 1,5, 6 and 7 after exposure. The day of exposure is day 0. Exposed workers who are not boosted, even if they are fully vaccinated, may return to work after 7 days with a negative test, or in 10 days without testing, if the agency is in a contingency phase.

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Vax or Mask Mandate Requirements Lifted, but not for Home Care

Posted on February 11, 2022 | by Sam Sadovic

Effective Thursday, February 10, 2022, Governor Hochul lifted the “vaccinate or mask up” mandate for the majority of New York businesses. However, healthcare settings are excluded from this waiver and must continue to require their staff to mask up, regardless of vaccination status. Home care offices (and, of course, the home setting) are considered healthcare settings. If providers have any questions about these requirements, please let us know.

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Congress Passes Law that would Limit Use of Confidential Arbitration to Resolve Sexual Harassment Claims

Posted on February 11, 2022 | by Sam Sadovic

Congress yesterday passed a bill that would make pre-dispute arbitration agreements and class action waivers covering sexual assault and sexual harassment claims invalid and unenforceable. The bill is headed to President Joe Biden’s desk, and he is expected to sign it. Here, we explain the bill and implications if it becomes law.

By way of background, the bill is titled “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021” (the “Act”) and it amends the Federal Arbitration Act (FAA) to give employees who are parties to arbitration agreements with their employers the option of bringing their claims of sexual assault or sexual harassment in arbitration or in court. Employers who routinely use arbitration agreements with class action waivers to cover all claims arising out of or related to employment will
know that such waivers generally state that any sexual harassment-type claims must be resolved through individual, confidential, arbitration. The agreements, thus, generally require the employee to utilize arbitration. If enacted, the Act would allow an employee claiming harassment to avoid going through arbitration to resolve their claims. Rather, the employee would have a choice as to whether to pursue claims against their harasser in court or through arbitration.

Employee advocate groups argue that confidential arbitration proceedings limit employees’ abilities to expose abusive employers through public court proceedings. In the wake of the MeToo movement, there have been significant efforts to repeal agreements and laws that, advocates argue, allow employers to “get away with” and cover up harassment claims made against harassing managers.

States like New York have tried to make agreements mandating confidential arbitration unenforceable, but such state restrictions conflicted with the FAA and, thus, are not enforceable. The Act seeks to cure that conflict between the FAA and state laws.

The Act adds a section to the FAA that states, “[A]t the election of the person alleging conduct constituting a sexual harassment dispute or a sexual assault dispute …. no pre-dispute arbitration agreement or pre-dispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.”

The Act defines “sexual assault dispute” as “a dispute involving a nonconsensual sexual act or sexual contact” and “sexual harassment dispute” as “a dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law.” The term “joint-action” waiver includes class and collective action waivers.

The Act further provides that the validity or enforceability of an agreement will be determined by a court rather than an arbitrator, despite the existence of a contractual term to the contrary. Finally, the Act states that it shall apply with respect to any dispute or claim that arises or accrues on or after the date of the Act’s enactment.

Takeaways for Employers
As enacted, the Act seems to apply only to claims that relate to sexual harassment or assault claims, meaning that other types of claims (e.g., wage and hour) could continue to be arbitrated, and that class action waivers of those claims would continue to be valid. Employers should not abandon arbitration agreements with class action waivers as a result of the Act’s anticipated passage.

Employers with arbitration agreements should anticipate more sexual assault and sexual harassment claims being filed in court, rather than arbitration. Employees will likely choose to pursue their sexual harassment claims in a public forum like the courts, in order to exert pressure on the employer to settle early on. While arbitration is not entirely confidential, it is inherently more confidential than litigation in court because of the absence of a public record. However, the new law makes clear that, with respect to
sexual assault and sexual harassment claims, it is up to the employee, not the employer, to decide whether the case is tried in court or in arbitration, regardless of what an arbitration agreement says.

As always, employers should implement risk mitigation efforts aimed at reducing their exposure to harassment claims, including sexual harassment claims. The likely passage of this Act will only raise the stakes for employers who are sued for alleged harassment.

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Changes to Independent Assessor Procedures Postponed until May 1

Posted on February 11, 2022 | by Sam Sadovic

By way of background, in 2020, the State amended the law to authorize the New York Department of Health (“DOH”) to contract with one entity to conduct independent assessments for individuals seeking personal care services, either in a LHCSA or a CDPAP setting. Subsequently, New York´s regulations were amended to require that individuals seeking these services under the Medicaid State Plan (including those individuals under the MLTC program) obtain an independent assessment and be evaluated and have a Medical Review and Practitioner´s Order form completed by an independent clinician that does not have a prior relationship with the individual seeking services. The State has contracted with Maximus Health Services, Inc. (“Maximus”) to perform the foregoing independent assessments. Upon full implementation of these amendments, the independent assessor (through Maximums) will conduct all initial assessments and all routine and non-routine reassessments for individuals seeking personal care.

The foregoing changes to the independent assessment have been postponed now until May 1. In view of significant opposition to this independent assessor process, there is some possibility of the State repealing the law, but that is not yet certain.

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No-Hire Agreements are a No Go

Posted on February 11, 2022 | by Sam Sadovic

Last week, a grand jury indicted four managers of home health care agencies for allegedly conspiring to “suppress wages and restrict the job mobility of” essential workers. The indictment alleges that the four individuals conspired to eliminate competition for the services of personal support specialists (i.e., aides) by agreeing to fix the rates paid to the workers and by agreeing not to hire each other’s aides. The indictment alleges that, among other actions, the individuals “participated in conversations and communications regarding MaineCare’s rate increases,” including communications “using an encrypted messaging app,” attended virtual and in-person meetings and “engaged in discussions to collectively fix the hourly rates for workers and refrain from hiring each other’s workers, and exchanged a series of group messages agreeing to fix rates at $15 per hour for workers. The indictment follows on the heels of a statement by a representative of the U.S. Department of Justice (“DOJ”), announcing that the DOJ will continue to “target [] excessive concentration and abuses by employers in labor markets.”

In a tight market, employers that are considering pacts or agreements with other employers whereby each employer abstains from hiring the other employer’s workers are not uncommon. Indeed, the New York State Attorney General is investigating certain healthcare employers under this theory of violations. Employers should speak with counsel before entertaining or entering into these types of agreements, whether they are written or unwritten agreements.

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Telephone and Video Nursing Supervision Visits Allowed to Continue for LHCSAs

Posted on February 11, 2022 | by Sam Sadovic

Recently, Governor Hochul extended an Executive Order that has been providing waivers from certain regulatory requirements for LHCSAs. Specifically, as relevant to home care, the Executive Order allows:

Initial patient visits for CHHAs to be made within 48 hours of receipt and acceptance of a community referral or return home from institutional placement;
CHHAs and LHCSAs to conduct in-home supervision of aides as soon as practicable after the initial service visit, or to permit in-person and in-home supervision to be conducted through indirect means, including by telephone or video communication; and
Nursing supervision visits for personal care services to be made as soon as practicable

This Executive Order is effective until March 1, 2022.

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NYS DOH Publishes Self-Attestations for COVID-19 Sick Leave Eligibility

Posted on February 11, 2022 | by Sam Sadovic

The State Department of Health (DOH) has published on its website self-attesting quarantine and isolation forms that employees may use to demonstrate eligibility for the State’s COVID-19 COVID sick leave pay.

As we have discussed in prior articles, the New York State COVID Sick Leave Law requires employers to provide paid leave for employees who are subject to a mandatory or precautionary order of quarantine or isolation, as well as for employees caring for a minor or dependent child who is required to quarantine. The law requires employees to be subject to “an order” of quarantine or isolation issued by the State of New York, a state or local health department, or any other governmental entity. In issuing the self-attestation forms, the DOH intends for employers to recognize the attestation as if a governmental entity has issued it for purposes of the COVID sick leave pay. Indeed, the Isolation form, for example, specifically states that “This form may be used for Isolation Release or for New York Paid Family Leave COVID-19 claims as if it was an individual Order for Isolation issued by the New York State Department of Health or relevant County’s Commissioner of Health or designee.”

However, the COVID sick leave law itself never contemplated a self-attesting form, even one that is on a government template. The law, as originally enacted, intended for a government entity to certify to an employee’s need for isolation or quarantine. As we have seen over the course of the pandemic, local departments of health (e.g., Nassau County, Onondaga County) and other governmental entities (e.g., NYC) have turned to self-attestation forms in view of practical challenges in issuing individualized quarantine or isolation orders to thousands of individuals per day. The State DOH’s own form now follows those local efforts.

Employers who have been inundated with requests for paid COVID sick leave should carefully consider whether to recognize self-attesting forms for purposes of paid COVID sick leave. While infected or exposed employees should be provided with the necessary time off from work, the question of who pays for that time off is a separate issue. As we have discussed in the past, COVID sick leave is an independent standalone sick leave benefit that must be paid out to an isolating or quarantining employee, and the employer cannot utilize the employee’s vacation or other PTO accruals for COVID sick leave.

If you have any questions about paid time off requirements related to employees who have been exposed or who are infected with COVID, please let us know.

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Booster Shots for Covered Healthcare Staff Due by February 21

Posted on January 24, 2022 | by Sam Sadovic

As we had previously reported, New York’s Public Health and Health Planning Council earlier this month adopted a requirement that covered healthcare entities ensure that their personnel are “boosted” against COVID-19. The adoption of the booster mandate was contingent and held, somewhat, in abeyance, pending guidance from the Department about the proper and timely “roll out” of the requirement.On Friday, the Department of Health announced that covered entities must ensure that covered healthcare personnel who are currently eligible for a COVID-19 booster have documentation of compliance with the booster regulation by February 21, and that personnel not currently eligible for boosters receive their boosters within 30 days of becoming eligible. In our experience, the Department surveyors are already enforcing these vaccination requirements among covered home care providers. Thus, providers should ensure compliance with the vaccine mandates, including the booster requirement.In its announcement, the Department reminded covered providers that reasonable accommodations may be appropriate in certain circumstances. An accommodation could, potentially, exempt an employee from the vaccine and booster mandates. Further, the Department reiterated that providers are responsible for documenting “continuously” their compliance with the vaccine mandate “following the dates for initial compliance, and including documentation of any reasonable accommodation.”
If you have any questions about these requirements, please let us know.

On Friday, the Department of Health announced that covered entities must ensure that covered healthcare personnel who are currently eligible for a COVID-19 booster have documentation of compliance with the booster regulation by February 21, and that personnel not currently eligible for boosters receive their boosters within 30 days of becoming eligible. In our experience, the Department surveyors are already enforcing these vaccination requirements among covered home care providers. Thus, providers should ensure compliance with the vaccine mandates, including the booster requirement.

In its announcement, the Department reminded covered providers that reasonable accommodations may be appropriate in certain circumstances. An accommodation could, potentially, exempt an employee from the vaccine and booster mandates. Further, the Department reiterated that providers are responsible for documenting “continuously” their compliance with the vaccine mandate “following the dates for initial compliance, and including documentation of any reasonable accommodation.” If you have any questions about these requirements, please let us know.

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NY Governor Proposes a RFO on MCOs and MLTCs, and Other Changes Relevant to Home Care

Posted on January 19, 2022 | by Sam Sadovic

The New York State budget season officially kicked off with Governor Hochul’s “State of the State” address on January 5, when the Governor broadly outlined her goals and aspirations for the State’s spending in the upcoming fiscal year, which begins on April 1, 2022. Yesterday, the Governor released detailed proposals of her vision for the State, detailing how New York’s various programs (like healthcare) would be funded in the upcoming fiscal year. As is customary, the Governor’s spending proposals also contain proposals to amend current laws and restructure the areas of funding (such as
healthcare).

The Governor’s spending plan at this point is a series of proposals which, as home care providers know, will be subject to extensive negotiations, lobbying, and advocacy in the weeks leading up to the final budget package. That final budget (and any changes to the law) is expected no later than April 1, 2022, the day that any changes would also take effect. Thus, with the caveat that these are just the starting proposals, here, we outline the Governor’s “Health and Mental Hygiene” Legislation (the “Health Proposals”), as relevant to home care services.

Initially, the Governor has made no proposal to repeal the LHCSA or CDPAP RFOs. These RFOs could be the subject of subsequent proposals by the Legislature or independently acting Legislators who might introduce a bill to repeal either of the RFOs as part of the overall State budget. At the moment, however, there is no proposal to amend the State’s law to repeal either the CDPAP or LHCSA RFO.

Somewhat unexpectedly, the Governor’s 298-page Health Proposals would require MCOs and MLTCs to go through a competitive bidding process with the DOH (similar to the recent fiscal intermediary RFO) in order to be allowed to continue to operate as a MCO or a MLTC in New York State. The Request for Proposals (“RFP”) would be posted on the Department of Health website, along with the criteria the Department would consider and the manner in which the selections would be made.

Per the Governor’s Health Proposals, plans’ RFPs would have to address the following requirements as part of the competitive bidding process:

accessibility and geographic distribution of network providers, taking into account the needs of persons with disabilities and the differences between rural, suburban, and urban settings;
the extent to which major public hospitals are included in the submitted provider network;
demonstrated cultural and language competencies specific to the population of participants;
the corporate organization and status of the bidder as a charitable corporation under the not-for-profit corporation law;
the ability of the bidder to offer plans in multiple regions;
the type of number of products the bidder proposes to operate;
whether the bidder participates in products for integrated care for participants who are duly eligible for Medicaid and Medicare;
whether the bidder participates in value-based payment arrangements;
the bidder’s commitment to participation in managed care in the State;
the bidder’s commitment to quality improvement;
the bidder’s commitment to community reinvestment spending, as will be defined by the Commissioner;
for current or previously authorized plans, past performance in meeting managed care contract or federal or State requirements, and if the Commissioner issued any statements of findings, statements of deficiency, intermediate sanctions or enforcement actions to a bidder for non-compliance with such requirements, whether the bidder addressed such issues in a timely manner; and “other” criteria as the Commissioner of Health might develop in the RFP.

The Commissioner will award plan applicants for “each product, for which proposals were requested.” “At least two managed care providers in each geographic region defined by the Commissioner” in the RFP will be selected, however, “the Commissioner shall not offer any more than [5] contracts in any one region.” Similarly, at least 2 MLTC plans will be selected per geographic region, with no more than 5 MLTCs per region being awarded the RFP

Additional plans might be approved in a separate RFP issued by the Commissioner, “if necessary to ensure access to sufficient number of managed long term care plans on a geographic or other basis, including a lack of adequate and appropriate care, language and cultural competence, or special needs services.” Any such RFP would be limited to the geographic or other basis of need that the RFP seeks to address. The awards made per this paragraph, however, would be subject to the limit of “at least 2 and no more than 5” plans per region.

Only those plans selected will be entitled to have a contract with the Department of Health “for the purpose of participating in the managed care program.” The contracts would run for as long as determined by the Commissioner, and may be renewed from time to time without a new RFP.

Currently operating MLTCs and MCOs would need to notify the Department of their intent to apply under this RFP within 60 days of the DOH issuing the RFP. A plan that fails to submit the notice of intent, that fails to apply, or that is not awarded authorization to participate in the MCO or MLTC program would – upon direction from the Commissioner – terminate its services.

Moratorium on New MLTCs and MCOs
The Health Proposal also includes provisions to impose a moratorium on the processing and approval of applications to establish a managed care organization. The moratorium would not apply to applications submitted to the Department prior to January 1, 2022, applications seeking a change of control or transfer of ownership, applications seeking authorization to expand an existing MLTC’s or MCO’s approved service area, and certain other applications.

In conjunction with the MLTC/MCO RFP, the moratorium seems to suggest that the Department believes the MLTC/MCO program has grown too large for New York State, and the RFP, in conjunction with the moratorium, is the State’s way of consolidating that market. This is similar to what the DOH is attempting to do with the CDPAP which, in its own words, has grown too large and too quickly for New York State’s desired budget. Given the relatively small number of MLTCs and MCOs overall across
the State, however, the question becomes whether the RFP is actually the State’s way of terminating the operations of plans it has deemed “unworthy.”

LHCSA Transfer Changes
The Health Proposal also modifies the process by which LHCSA operators can transfer interests in the LHCSA. New DOH notice requirements are proposed in the Health Proposal, seemingly designed to increase transparency about the operators and owners of the Article 36 entities. The Health Proposal also contains provisions expressly stating that failure to provide notice and receive approval of any transfer may result in the revocation of the LHCSA’s license.

Establishment of a State PACE Program
The Health Proposal proposes establishing a New York PACE Program, that would work in conjunction and parallel to the currently-operated PACE program. While the Health Proposal is quite detailed in this regard, the logistics of this NY PACE proposal – if adopted in the final budget – are quite unclear. We will provide more information about this as it becomes known.

As expected, this promises to be an interesting budget season in New York, especially since the Governor and all of the State’s Legislators are up for re-election. Please reach out to us if you have any questions about the budget process or the current Health Proposals.

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