Category: Home Care Developments

DOH Extends Waivers of Regulatory Requirements

Posted on | by Sam Sadovic

On November 23, 2022 Governor Hochul signed Executive Order (EO) 4.15, which continues certain regulatory relief measures for home care providers until December 23, 2022.  As its predecessor, EO 4.15 provides that:  

  1. Initial patient visits for CHHAs, LTHHCPs, and AIDS home care programs may be made within 48 hours of receipt and acceptance of a community referral or return home from institutional placement;
  2. CHHAs, LTHHCPs, AIDS home care programs and LHCSAs may conduct in-home supervision of home health aides and personal care aides as soon as practicable after the initial service visit, or permit in-person and in-home supervision to be conducted through indirect means, including by telephone or video communication;
  3. Nursing supervision visits for personal care services to be made as soon as practicable. 
  4. RNs, LPNs, and NPs licensed and in current good standing in any state in the United States may practice in New York State without civil or criminal penalty related to lack of licensure;
  5. Allows New York State-licensed providers without current registrations to practice without penalty for lack of registration;
  6. Expands the scope of practice for additional health care workers to allow for COVID-19 testing and vaccinations, including an expansion of the ability of midwives, registered nurses, physicians and nurse practitioners to more easily administer and order COVID-19 vaccinations and testing as well as flu vaccinations.

Note that while the above relief measures continue, the state Department of Health still expects agencies to adhere to existing state regulations and to provide services in patients’ homes. If the agencies cannot do so, then they should document what barriers they have encountered in these areas and their efforts to address such barriers that necessitate utilization of these relief provisions. 

NY CDPAP RFO Moves Forward

Posted on | by Emina

This afternoon, the New York State Department of Health released attestation forms and supporting information forms for fiscal intermediaries that had applied for the CDPAP RFO but which had not previously been selected as lead fiscal intermediaries. As home care insiders will recall, there was a first round of CDPAP RFO awardees (68 agencies in total) announced by New York State Department of Health in February 2021.  However, due to subsequent changes in the law, the Department re-opened the RFO to additional fiscal intermediaries that had applied for the RFO but did not “win” an award in the first round. This “second” round of RFO contracts is intended for fiscal intermediaries that met certain patient census requirements during the first quarter of 2020.  Today’s forms were issued in furtherance of this second round of awardees, to invite them to submit information to New York State and demonstrate that they meet the patient census requirements that are necessary to receive a lead fiscal intermediary RFO award.

As we had reported previously, based on the changes made in the law, fiscal intermediaries that actually applied and that were not awarded by the New York State Department of Health within the first round of awards, are still eligible to receive a lead contract with New York State. To be clear, this second round of potential awards does not apply to any fiscal intermediary that did not apply for a RFO in 2020. Thus, entities who wish to become a fiscal intermediary now or that somehow began providing FI services since the RFO was submitted in March 2020 cannot utilize this process to become a lead fiscal intermediary.  

For the entities that did apply in 2020, but were not yet notified officially by the Department that they are a lead fiscal intermediary, such entities can still qualify as a lead fiscal intermediary if they can demonstrate that they had 200 or more consumers being serviced during the period of January 1, 2020 through March 31, 2020 in any or all of New York, Kings, Queens, Bronx, and Richmond counties. In the alternative, a fiscal intermediary could be awarded a contract as a lead if it demonstrates that it serviced 50 or more consumers in any other county of New York State during the same applicable Q1 2020 period.

The Department has issued a one-page attestation form for this “second slate” of fiscal intermediary applicants to complete, alongside with a template “attestation supporting information spreadsheet,” which also has to be completed. The supporting documentation must provide sufficient evidence to confirm that the fiscal intermediary indeed was serving the requisite number of consumers, on the requisite dates, and in the requisite counties, otherwise the entity will not qualify to receive the lead fiscal intermediary award from New York State.

The deadline to submit the attestation and supporting documentation is November 29, 2022. The State has also announced that the anticipated contract award date for all the lead fiscal intermediaries (inclusive of first and second “slate” awardees) is now January 15, 2023. After the lead contracts are awarded by the State, the non-lead fiscal intermediaries will be required to begin transitioning consumers to lead fiscal intermediaries.

If you have any questions about the CDPAP RFO process, please let us know.

DOH Postpones Wage Parity Certification Deadline

Posted on | by Emina

Today, the Department of Health announced that it would be postponing the wage parity certification deadlines once again.  As relevant to home care providers covered by the Wage Parity Law, LHCSAs and FIs are now required to submit completed LS300 forms by December 1, 2022. The LS300 form will be revised by the DOH before December 1, thus providers should not rush to sign the current LS300 version.

The LS301 requirement for an independently audited financial statement for calendar year 2021 has been further delayed. Statements for calendar years 2021 and 2022 are now due on October 1, 2023.

CHHAs and MLTCs are required to receive and review network providers’ LS300 forms by December 1, 2022.  The compliance date for CHHAs’ and MLTCs’ receipt and review of independently audited financial statements for the LS300 forms for calendar years 2021 and 2022 is October 1, 2023.

The Department’s announcement also makes clear that, going forward, the deadline for compliance and certification under the LS300 and LS301 requirements will be October 1 of each year.

Lastly, any LS300, LS301 or audited financial statements already submitted by LHCSAs or FIs prior to the Department’s guidance may be reviewed and considered completed for the 2022 year.  LHCSAs and FIs who have completed these requirements do not have to revise or resubmit to their contracted CHHAs, LTHHCPs or MCOs once revised forms or procedures are posted by the Department.

If you have any questions about this development, please let us know. 

NYS Issues Guidelines for LHCSA Ownership Changes and New LHCSA Establishment

Posted on | by Emina

Today, the New York State Department of Health released extensive information and GUIDELINES regarding changes of ownership for LHCSAs and applications for licensure. This guidance has been in the making since 2018, when the Public Health Law was amended to prohibit the Public Health and Health Planning Council from approving new LHCSA applications unless there was a “public need” for such a LHCSA, the character, competence and “standing in the community” of the LHCSA’s owners, directors, and other stakeholders was established, and the LHCSA demonstrated that it had financial resources to operate the agency. 

Today’s Dear Administrator Letter establishes that:

  1. The public need methodology will apply to all LHCSA applications submitted on or after April 1, 2020.
  2. The public need methodology includes a rebuttable presumption of no need for additional LHCSAs in a county if there are 5 or more LHCSAs actively serving patients within the county as of April 1, 2020. 
  3. A LHCSA applicant can overcome the presumption of no need based on local factors related to an applicant’s services or planning area, including, but not limited to:
  • the demographics and/or health status of the patients in the planning area or the State, as applicable; 
  • documented evidence of the unduplicated number of patients on waiting lists who are appropriate for and desire admission to a LHCSA, but who experience a long waiting time for placement; 
  • the number and capacity of currently operating LHCSAs; 
  • the quality of services provided by existing agencies; 
  • the availability and accessibility of workforce; 
  • personnel and resources dedicated to adding and training additional members of the workforce including committed resources in an organized training program; 
  • cultural competency of existing agencies; and, 
  • subpopulations requiring specialty services.

Applications for licensure based on change of ownership for LHCSAs actively serving at least 25 patients will not be subject to public need review and shall be evaluated only on financial feasibility and the character and competence of the proposed operator, unless the proposed operator seeks to serve patients outside of the agency’s approved counties. 

LHCSAs affiliated with an Assisted Living Program (ALP), Program of All-Inclusive Care for the Elderly (PACE), Nurse Family Partnership (NFP), or Continuing Care Retirement Community (CCRC) will be exempt from the public need methodology if the agency exclusively serves patients within those programs. 

All applications will be reviewed for character and competence. 

The DOH’s DAL also provided a link to a new application for licensure, available HERE, and FAQs, which can be accessed HERE

If you are considering a LHCSA acquisition or sale, or are in the process of a change of ownership, or if you have general questions about this development, please contact us.  

NYS Operationalizes the Healthcare Worker Bonus Program

Posted on | by Emina

Your Employees may be Eligible for a $3,000 One-Time Bonus, paid mostly by the federal Government

As we reported in our April alert, the New York State Budget established a healthcare worker bonus (the “Bonus”) program that would pay up to $3,000 to qualified healthcare workers that are employed by qualified providers. On August 3, the Department of Health notified providers through eMEdNY that the healthcare worker bonus program (“HWBP”) has been activated, and that a portal has been established through which providers would submit required information to apply for their employees’ bonuses. The Department’s website for the HWBP is generally robust, and available here. The information that is plainly on the website will not be repeated here. Instead, this alert will focus on some common outstanding questions that have not been addressed by the Department, as they relate to home care providers. Clearly, the HWBP was designed around the hospital and, a little less so, the nursing home setting. Thus, much of the Department’s guidance and interpretation of the HWBP does not translate easily to the home care context.

Initially, insofar as entity eligibility, we know that CHHAs and LHCSAs are covered by the HWBP. There is generally a requirement that the provider be enrolled in Medicaid, but some avenues for non-Medicaid providers also appear to exist. In addition, although not mentioned by the Department on its website, the HWBP law itself states that other Medicaid-billing providers may participate in the program, so long as “at least [20%] of the provider’s patients or persons served are eligible” for Medicaid services. Thus, this 20% threshold is relevant to providers who not only operate a home care program but may offer related healthcare services.  

Providers who rely on staffing agencies for healthcare labor cannot seek and obtain bonuses for those healthcare staff that is assigned by the staffing agency, as per the DOH’s FAQs (available here).

Fiscal Intermediaries are outright considered ineligible employers by the Department, per the DOH’s FAQs.

Separately, insofar as employee eligibility, we know that New York State has determined that direct care staff, such as HHAs and PCAs, are not eligible for the Bonus. In their FAQs, the State has explained that, due to the $2.00 minimum wage increase taking effect October 1, home care workers have, effectively, been rewarded sufficiently.  However, other clinical staff employed by home care agencies are eligible for the Bonus, such as nurses and therapists. It Is not clear if such clinical staff, to the extent they worked remotely (as they were authorized to do during the vesting period under various regulatory waivers), would be eligible for the Bonus. This question has not been addressed, but we know that there is an emphasis in the HWBP in rewarding “front line” workers.

In addition, it is not clear if other office staff, such as coordinators, HR intake, and compliance employees would qualify for the Bonus. In the DOH’s list of eligible employees, various clerical and clerk positions are identified as “other health care support workers” who would be eligible for the Bonus. The names of these titles suggest that they are hospital and nursing home-setting positions, where there would be some potential of front-line work and patient-facing responsibilities. It is unclear if this rationale extends to home care, where the office staff rarely, if ever, interacts directly with patients of home care services. This is a pivotal issue for LHCSAs and CHHAs. In our conversations with the DOH, we were not given an explanation or any guidance. Rather, the DOH suggested that providers begin the enrollment process on the portal and address these worker eligibility issues through the application process. 

Separately, another outstanding issue has to do with the salary cap of $125,000. The HWBP limits the Bonus to individuals whose annualized base salary is $125,000, excluding overtime and bonuses. However, it is not clear whether other compensation (such as shift differentials, vacation pay) can be considered as part of the base salary.

Insofar as taxes and payroll obligations, the DOH takes the position that the $3,000 bonus is not subject to New York personal income tax. There is no mention of federal income tax implications.  There is also no mention of unemployment insurance or workers’ compensation implications of the $3,000 payment. We have sought clarification of these items, since there is no reimbursement to covered employers for these ancillary related costs of paying a $3,000 bonus.

Lastly, the HWBP is a mandatory-participation program. Employers must submit claims and seek the Bonus for their eligible employees’ bonuses. Any employee who does not receive a bonus that they may be entitled to is directed to complain to OMIG’s Fraud Hotline. Thus, for any employer that might be overly frustrated by the lack of clarity, or potential payroll and overhead obligations of the HWBP, such employer does not have the option to waive participation.

We will be following up with the DOH on these outstanding issues, and others. In the meantime, if you have any questions about the program, please let us know.

New York State Proposes Changes to Medicaid Fraud, Waste and Abuse Prevention Programs and its Compliance Program Requirements 

Posted on | by Emina

The New York State Office of Medicaid Inspector General (OMIG) has proposed regulations (the “Regulations”) to revamp its provider compliance program and enforcement. The proposed regulations are in the State Register and address (a) provider compliance programs; (b) Medicaid managed care plan organization (MMCO) fraud, waste and abuse prevention programs; and (c) the reporting and returning of Medicaid overpayments to OMIG.

Provider Compliance Programs

The Regulations propose to repeal the current Provider Compliance Program regulatory requirements and replace them with a new Subpart 521-1, which imposes obligations on “required providers” to adopt and implement effective compliance programs. “Required providers” include LHCSAs, other Article 36 entities, as well as Article 28, 16 and 31 entities (including MLTCs) and any other entity for which Medicaid is a substantial portion of its business.  

Additionally, the Regulations include several new requirements that do not appear in existing regulations, including:

  • 10-year document retention requirements for managed care organizations (“MCOs”) and a 6-year document retention period for all other “required providers.”
  • All compliance program requirements expressly apply to the required providers’ contractors, agents, subcontractors, and independent contractors.
  • A new “risk area” — contractors, subcontractors, agents and independent contractor oversight – must be considered by all required providers, and a number of additional “risk areas” must also be considered by MCOs (including MLTCs).
  • Providers that are “required providers” must submit a compliance certification to each MCO for which they are a participating provider upon execution of the MMCO’s participating provider agreement and annually thereafter (and the submission method shall be described on the MCO’s website).
  • Required providers must comply with OMIG’s regulations regarding Medicaid overpayments.
  • Specifically enumerating the compliance officer’s duties, including his or her reporting structure. Notably, under the proposed regulations, the compliance officer is no longer required to be an “employee” of the covered provider.
  • Establish and implement an effective system for the routine monitoring and identification of compliance risks, including the types of audits the provider must undertake and the frequency of such audits.
  • Establish and maintain procedures for responding to and addressing compliance issues as they are raised.

MMCO Fraud, Waste and Abuse Programs

The Regulations – with respect to Medicaid fraud, waste, and abuse programs – would apply to all MLTCs, regardless of member enrollment, and further require the establishment of a dedicated full-time Special Investigation Unit (with details about staffing, reporting and work plan requirements) if the MCO has an enrolled population of 1,000 or more.

Some of the more significant requirements in proposed Subpart 521-2 that do not appear in existing regulations, include:

  • Audit and investigation requirements which include the scope of such audits and investigations and the general requirements for conducting such audits and investigations.
  • Obligations to report cases of fraud, waste and abuse to OMIG in accordance with the MMCO’s contract with the Department of Health.
  • Obligation to file a fraud, waste and abuse prevention plan with OMIG 

Medicaid Overpayments

The Regulations reinforce that covered providers or individuals must report, explain and return Medicaid overpayments to OMIG. The term “person” includes home care agencies, hospices and MCOs (including MLTCs and their contractors and participating providers) and virtually any other provider or supplier that is enrolled in the Medicaid program. A reportable incident (and the timeline for reporting the same) begins when the covered individual “has or should have through the exercise of reasonable diligence, determined that they received an overpayment and quantified the amount of the overpayment.”

Comment Period

The regulation will be subject to a 60-day public comment period. Providers who might have comments to the proposed regulations can reach out to our firm and request that comments be formally submitted to the State on their behalf.

Ninth Circuit Finds Employer Not Required to Pay Workers for Time Spent Going to Obtain a Work-Related Drug Test 

Posted on | by Emina

Recently, the Ninth Circuit Court of Appeals upheld a judgment in favor of WinCo Foods in a class action where workers alleged that WinCo should have reimbursed successful job applicants for the time and travel expenses they incurred while obtaining a drug test as a pre-condition of employment. The Ninth Circuit ruled in Johnson v. WinCo Foods, LLC ruled that WinCo was not obligated to reimburse the costs because the plaintiffs were not employees at the time that they took the drug tests.

The plaintiffs’ primary argument centered on the idea that since WinCo controlled where, when, and how the new hires were tested for drugs as a condition for employment, they acted as an employer, exercising power over an employee.

In rejecting this argument, and others, the Ninth Circuit reasoned that the drug test was part of the job application process instead of performance of the job. Although an employment contract with WinCo had been formed prior to the drug test, the Court found that a successful drug test was a condition “precedent” to an employment contract with WinCo and, thus, the workers did not yet become employees of WinCo at the time they took the drug test. The contract stated clearly that the plaintiffs would not be hired until after a successful drug test.

The Ninth Circuit’s decision is not binding on the Second Circuit, which controls the wage and hour laws and precedent for New York employers. However, the decision is instructive in how employers should structure their compensation policies and hiring policies to bolster their case and defense should a class of employees claim that they should have been paid for the time spent taking a pre-employment drug test.

If you have any questions about this decision or your company’s wage and hour practices, please reach out to us.

FMAP Awards have been Distributed. How to Lawfully Spend those Funds.

Posted on | by Emina

LHCSA providers that were selected to receive FMAP funding have began to see deposits of the FMAP in their accounts and are now busy contemplating how to spend these funds in a compliant fashion.  In this alert, we review some common questions and concerns we have received from clients.

When to Spend

Initially, there is no requirement that the funds be spent immediately within the first quarter of 2022. Indeed, there is no obligation that the funds be allocated or that vendors be hired and paid in the first quarter of 2022. Providers can certainly hold on to the funds and spend them leisurely over the next several months, so long as they do so by April 1, 2023.  

FMAP For Wage Parity or Minimum Wage Increases

At this time, the funds cannot be used to fund the $2.00 minimum wage increase that is slated to take effect October 1, 2022, because the intention of FMAP funding is to cover and pay for new expenses, not ongoing or statutory obligations. For the same reason, FMAP cannot be used for the same expenses as those covered by the Wage Parity total compensation requirements of $18.22 or $19.09.

Bonuses and Pay Changes 

Providers should be mindful that any bonuses or incentives involving increases in pay are likely going to be taxable as wages. Paying a bonus on a gift card does not change this outcome. Further, for most types of pay incentives, such as bonuses, depending on how the bonus is structured, the amount of the bonus may have to go into the overtime rate for the employees receiving the bonus. For example, if the employee’s wage is $15.00, their overtime rate is generally going to be $22.50/hour. However, if a bonus is paid for work associated with the week when the overtime was worked, that overtime rate will have to be adjusted and will no longer be $22.50. Trying to pay a bonus in a week when overtime was not worked is also not going to compliant, and it is not practical. Technically, certain bonuses must be allocated to the week, or weeks, over which the bonus was earned. Similarly, premiums for travel, difficult shifts, or other similar pay-increases may also have to be accounted for in the overtime rate calculation.   It is not clear if new overtime premiums that result from these wage increases can be covered by FMAP. 

Training 

Training programs are certainly encouraged by the FMAP program, but providers should be mindful of the types of training programs that will qualify. The DOH has posted some guidance in this regard. 

Marketing

Only certain types of marketing activities will qualify for FMAP spending. Capital expenses, such as new recruitment offices, are a clear NO insofar as FMAP is concerned. 

Union Issues

Some unions are aggressively proposing the idea of a “hazard pay bonus” to the agencies employing the unions’ members.  Initially, it bears noting that some aspects of the FMAP are subject to mandatory negotiation with the union while other aspects of the FMAP are not.  Thus, not everything surrounding the FMAP is open to negotiation.  In terms of wage and benefits proposals that may be made, a hazard pay bonus would seem to be a permissible expenditure of FMAP under the DOH’s guidelines. The DOH specifically notes that payments can be made based on past performance, as long as those payments are made to current employees, among other conditions. 

Home Care Technologies

Certain technology providers have pitched the idea of developing, on behalf of providers, a certain SaaS, a platform, software, or system. Providers should ensure that the service being proposed by these vendors would qualify for FMAP. Not all technology is deemed qualifying under FMAP. 

Separately, providers should carefully consider contracting to pay a developer FMAP funds to develop a service or software at this point in time. While the funds for the development costs would theoretically be expended now, there is no guarantee that the service/software will be available within the time period within which the FMAP funds have to be spent. And, per FMAP, the funds are permitted to be used for a technology service, not the development cost without a service. 

Lastly, providers should negotiate with any vendor proposing to develop a software using the provider’s FMAP award about the provider’s intellectual property rights, royalties, and other similar benefits if/when the software is developed.  

Making Your Dollar Go Far

Lastly, providers who were selected to receive these funds should diligently consider which incentives and programs will have the greatest impact on their operations’ future, and which programs will position them for a successful RFO and MLTC rate negotiations.  Pay increases, such as bonuses and similar incentive programs will only have an impact so long as they are being paid and the FMAP award is finite.  These pay programs will not have a long-term impact.  And we now know from the Comptroller’s report and DOH statements that this type of an investment and grant is unlikely to be repeated soon.  Thus, providers should consider creative strategies to develop quality aides that will feel engaged with their work and committed to their agency employers.

If you have any questions about FMAP and how to properly structure your FMA award, please let us know. 

NY DOH Announces New Deadline for Plans and Providers to Submit Wage Parity Certifications

Posted on | by Sam Sadovic

As we reported earlier today to our clients, the New York Department of Health (“DOH”) has announced that it has postponed the deadline for LHCSAs and FIs to submit the wage parity certification information (e.g., LS 300 and LS301 forms) from the current deadline of June 1 to October 1, 2022. The compliance deadline for MCO’s and CHHA’s receipt and review of providers’ compliance attestations will also be extended from June 1 to October 1, 2022. A link to the DOH’s announcement is not yet available, but anyone wishing a copy of the same can contact us.

The DOH’s announcement also states that “The Departments of Health and Labor are currently reviewing forms LS-300 and LS-301 to determine if amendments are required and may be providing additional guidance on the forms and audit process required to complete the forms in the coming weeks.”

This announcement provides significant relief to providers who have been struggling to find accounting firms to conduct and certify the results of audits of providers’ wage parity compliance. As the provider community knows, the DOL’s and DOH’s contemplated process for the wage parity compliance certifications has faced significant pushback from the professional accounting and auditor community. These additional months should provide much-needed time to amend the forms and the process.

If you received this alert from a third party or via social medial and would like to be added to our Home Care e-mail list, please visit poricaninlaw.com. You will be prompted to sign-up for our email list on our website.

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NYS Budget is Out What does it mean for Home Care?

Posted on | by Sam Sadovic

The final NYS Budget was released over the weekend. In addition to bail reform, gas price relief, childcare and other measures, the Budget contains a lot of relevant information for the home care industry. As we have already reported on the CDPAP changes from the Budget, this alert will focus on the remaining aspects of the Budget. 

1. FAIR PAY FOR HOME CARE IS IN, SOMEWHAT 

A 150% increase to the base wages of home care workers was not passed, however, the Budget states that beginning October 1, 2022, the hourly minimum wage for home care workers (which includes personal assistants and NHTD/TBI workers) will increase by $2.00. Starting on October 1, 2023, the minimum wage will increase again by an additional $1.00.

It is not clear how these increases will be funded. The Budget does not expressly appropriate funding for this increase in wages. Home care advocacy groups are working on ensuring that the necessary reimbursement comes through, and we have heard from various sources that the Legislature intends to “pick up” this issue post-Budget. To ensure adequate and timely reimbursement, providers should not only speak to their plans (who are also in a position to demand additional reimbursement from New York State) but also advocate and lobby with their local elected officials.

The Wage Parity benefits increases that were proposed by the Assembly and Senate are not in the Budget.

2. BONUS PAY FOR HEALTHCARE WORKERS

Subject to federal participation and funding , the final Budget also includes a one-time bonus for “certain front line health care and mental hygiene practitioners…” According to the Budget bill, the bonus would apply to LHCSAs and FIs (among other healthcare providers) and is intended to “attract talented people into the profession at a time of significant strain…and reward them financially for their service.” However, the Budget defines eligible employees as “assistants” (presumably FI personal assistants) and “aides” (presumably LHCSA and CHHA aides) “that provide hands on health or care services to individuals…that received an annualized base salary of [$125,000] or less, to include [various healthcare professionals, as listed].” HHAs, PCAs, and PAs in CDPAP are not specifically listed as the types of personnel covered by the Budget bill. We have also heard this morning that the Office of Budget does not consider home care and fiscal intermediary direct care staff to be covered by this Budget bill. We are monitoring this issue and will update our readers as more information becomes available.

Per the Budget, worker bonuses would be commensurate with the number of hours worked during a vesting period, with the vesting periods being determined by a schedule published by the Commissioner of Health. The bonus program would provide for total payments not to exceed $3,000 per employee based upon the number of weekly hours worked in a vesting period.

The Commissioner of Health will develop forms and procedures to identify the number of hours of employees worked, and forms related to reimbursement to employers. Employers will track the number of hours worked by employees and submit claims for reimbursement of employee bonus payments. Employers will be responsible for determining if an employee is eligible under this law for the bonus.

Similar to the language in the Wage Parity Law, the Budget specifically states that “no portion of any dollars received from claims [for bonus reimbursement]…shall be returned to any person other than the employee to whom the bonus is due,” and, for wage parity providers, the Budget states that no portion of the bonus amounts can be used to reduce the “total compensation” required to be paid under the Wage Parity Law.

Compliance with the law will be monitored by the Office of the Medicaid Inspector General (“OMIG”). Inappropriate claims for bonus reimbursement will be treated as Medicaid overpayments and may be recovered as such. OMIG could also impose other penalties and exclude providers from Medicaid participation as punishment for any wrongdoing related to this bonus program.

3. LHCSA RFO HAS NOT BEEN REPEALED

Despite strong advocacy efforts, the LHCSA RFO has not been repealed. Under the law as it currently stands, the DOH is required to issue a LHCSA RFO. We do not know when that will happen, despite indications that the LHCSA RFO would be “implemented” on May 1, 2022. In view of the significant pushback that the CDPAP RFO has received, it is likely that the same advocacy and litigation will ensue once the LHCSA RFO results are announced.

4. MLTC RFO IS A NO-GO

The final Budget does not establish a MLTC RFO, as had been proposed by the Executive. Instead, the Budget commands the Department of Health to appoint an independent contractor to “generate a report that reviews and makes recommendations concerning the status of services offered by managed care organizations contracting with” the NYS Medicaid program. Thus, instead of a MLTC RFO, the State will conduct a study on and about managed care.

5. INDEPENDENT ASSESSOR IS ON TRACK FOR 5.1.22

The independent assessor provisions that are on track for May 1, 2022, have not been repealed through the Budget. However, the Budget contains a provision that sunsets the Independent Assessor (IA) selection no later than September 30, 2025. The Budget also significantly modifies the statute language that outlines the process by which an independent assessor is selected.

6. OTHER IMPORTANT HOME CARE RELATED ITEMS FROM THE BUDGET

A. The Medicaid Global Cap has been redefined. The methodology for calculating the cap has changed from a 10-year rolling average to a 5-year average and will now be based on the annual growth rate projections from the Centers for Medicare and Medicaid Services’ (CMS) actuary offices. The intention of the change is to provide a more accurate picture of Medicaid spending and growth of the Medicaid program.

B. As proposed by the one-house budget bills, the Budget includes enhanced rates for Private Duty Nursing in the medically fragile children program will now extend to care for those individuals after they reach age 23. Rates may be calculated by the Commissioner of Health from average 2020 Medicaid Managed Care payments.

C. The Budget includes a 1% rate increase for home care, hospice and other healthcare providers, as well as an elimination of the current 1.5% reduction to Medicaid rates.

If you received this alert from a third party or via social medial and would like to be added to our Home Care e-mail list, please visit poricaninlaw.com.You will be prompted to sign-up for our email list on our website.

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