Category: Home Care Developments

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:

1. 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.
2. A registration would be effective for 5 years.
3.  The fiscal intermediary would need to pay a registration fee that will not exceed $5,000.
4.  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.
5.  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.
6. 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.
7. 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.

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.

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.

Today, the DOH held a webinar to discuss the FMAP program. The information in this
alert is relevant only to the 200+ LHCSAs that received an award letter from the DOH
on or about December 23, or who believe they were the 1/3 highest-billing LHCSAs in
2019.

Initially, on today’s webinar, the DOH emphasized that 235 LHCSAs were selected for
distribution of FMAP funds, not “approximately 250” as originally indicated. The DOH
also emphasized that this pool of selected LHCSAs will receive approximately 361
million, to be used for qualified expenses, and subject to CMS approval. However,
additional funding (approximately 1.1 Billion) may be forthcoming, to be distributed
under different criteria. Thus, providers who did not receive funding under this initial
distribution may qualify for funding under future programs.

The following are relevant points from today’s webinar, in no particular order:

• The State chose to select LHCSAs based on “MAP and MLTC revenue because
  MLTC and MAP product lines account for the majority of Medicaid expenditures
  in long-term care.”
• The amount of the award each selected LHCSA received was “calculated based
  on each agency’s managed care utilization during the first six months of SFY 22
  (4/1/21-9/30/21), limited to personal care services provided to Medicaid
  enrollees in MLTCP and MAP plans from April 2021 through September 2021.”
• Award amounts were determined by the DOH. The MLTC will receive
  instructions from the DOH about the amount of funding that will be sent to the
  individual LHCSAs on the DOH’s list.
• The DOH stated that selected LHCSAs will receive their awards, generally, from
  each plan they work with. However, the DOH will combine some award amounts
  so that only one plan is making the distribution to the provider.
• The awards must be paid by the State to plans by the end of the current State
  FY, which is March 31, 2022. However, the funds from the plans must be
  distributed to the LHCSAs promptly thereafter, sometime in the FY that begins
  April 1, 2022. The LHCSAs must spend their funds by the end of March 31,
  2023
• The payments from the State to the plans (for distribution to providers) will be a
  one-time payment to the plans.
• The DOH will attempt to increase the character limits (currently set to 1500) for
  purposes of providers submitting their narrative explanations of how they will
  spend the FMAP funds.
• Providers’ questionnaires must include data concerning 2022 spending.
• Plans cannot direct how LCHSAs can spend the FMAP funds.
• The State will only distribute the FMAP money to the selected agencies. If an
  agency is disqualified from receiving their award, the award will be rolled over to
  the next round of spending. New agencies will not be selected to receive funds
  that another agency was disqualified from receiving.
• Agencies that fail to satisfy requirements are subject to audit and
  recoupment. “Agencies must keep track of spending and clearly document all
  award expenditures. Agencies will not be required to provide documentation in
  their quarterly reports, but must keep documentation available until March 31,
  2028.”
• NHTD/TBI staff can benefit from the funds, however the DOH will confirm this
  point later on.
• LHCSAs that operate Statewide but only received an award for a certain portion
  of the State will be required to report data in the questionnaire for the entire
  Agency.
• The State will provide updated guidance about nurse supervision spending
  and/or nursing services.
• Agencies can use the award to raise wages or incentivize recruitment of direct
  care workers “and nursing staff providing, or supervising the provision of,
  personal care or nursing services.”
• “Funding cannot be used to cover existing expenses or legal requirements, even
  if they fall into allowable categories. Funding must be spent on new or
  augmented programs, services or purchases.”
• “Signing bonuses are allowable for new employees as long as they are not being
  hired from another LCHSA. Reimbursement for the completion of a PCA/HHA
  training program that occurs just prior to the hiring of a newly certified employee
  is allowable.”
• Agencies can use funding to “pay for consultant fees as long as the scope of
  work being covered is strictly focused on one of the approved investment areas.”
• The DOH emphasized that they will not permit agencies to use a new-hire
  incentive payment to “lure away” a worker from an agency.
• Purchasing PPE is one of the allowable expenses, but since agencies are
  already required to provide PPE, the DOH will consider how FMAP funds can be
  used towards PPE.
• The questionnaire and attestations are not going to be used by the DOH to
  determine who to provide the FMAP to.
• Capital expenditures are not allowable uses of this funding.
• The DOH does not intend to release the list of the awardees because they do
  not have CMS approval. It is their intention to disclose the list of approved
  entities once CMS approval is received.
• Funding cannot be used for CDPAP expenses.
• Only investments that do not fall within an area or category provided in the
  guidance require individual approval from the DOH. Approval must be requested
  by January 12, 2022.
• The award amounts provided in the DOH’s award letters are approximate. That
  approximate amount must be used by the agencies when completing their
  questionnaire. “Agencies will be able to adjust their budgets in quarterly reports
  and will need to justify any changes in their spending plans.”
• A project or program to draw in a more diverse staff “could be fundable” under
  FMAP.
• An additional nurse hire to support staff for purposes of VBP would “generally”
  be an allowable expense.
• Only LHCSAs selected by the DOH are required to respond to the DOH’s
  survey, which is due by January 14.
• Survey responses should only include data regarding LHCSA services, not
  CDPAP.
• Agencies cannot use the FMAP funding to pay for overtime costs, because
  overtime costs are already a required expense.
• Agencies that believe they are qualified but did not receive an award letter
  should email the DOH at LHCSA.FMAP@health.ny.gov
• Marketing for new clients is not fundable by FMAP. However, recruitment efforts
  that are new “could be” fundable.
• The DOH will allow agencies to make changes to budgets and
  allocations. Agencies will report such changes in their quarterly submissions to
  the State.

The DOH will issue updated FAQs, thus some of the responses provided above may
change.

On Friday evening, the New York Department of Health (DOH) issued an advisory through the Health Commerce System, shortening the isolation period for certain fully vaccinated health care workers and other critical workforce members.

As relevant to home care providers, the advisory states, “In limited circumstances where there is a critical staffing shortage,” employers may allow a person to return to work after day 5 of their isolation period (where day zero is defined as either date of symptom onset if symptomatic, or date of collection of first positive test if asymptomatic) if they meet all the following criteria:

• The individual is a healthcare worker or other critical workforce member (home care workers are included)
• The individual is fully vaccinated,
• The individual is asymptomatic, or, if they had mild symptoms, when they return to work they must:
  • Not have a fever for at least 72 hours without fever-reducing medication
  • Have resolution of symptoms or, if still with residual symptoms, then all are improving
  • Not have rhinorrhea (runny nose)
  • Have no more than minimal, non-productive cough (i.e., not disruptive to work and does not stop the person from wearing their mask continuously, not coughing up phlegm), and
• The individual is able to consistently and correctly wear a well-fitting face mask, a higher level mask such as a KN95, or a fit-tested N95 respirator while at work. The mask should fit with no air gaps around the edges.

Individuals who are moderately to severely immunocompromised are not eligible to return to work under this guidance.

Employees in healthcare settings, including home care, “may allow workers” to participate and return to work in accordance with the above criteria, however, the employee “should be restricted from contact with severely immunocompromised patients (e.g., transplant, hematology-oncology, neonatal ICU) and “a respirator or well-fitting surgical facemask should be worn even when the individual is in non-patient care areas such as breakrooms or offices.”

Individuals who return to work under these criteria “must continue to stay at home, take precautions to avoid household transmission, and observe other required elements of isolation while not at work until the end of the 10-day period.”

Testing is not required.

Per the DOH, workers participating in this program “should be instructed” that: (1) They should practice social distancing from coworkers at all times except when job duties do not permit such distancing; (2) If they must remove their respirator or well-fitting facemask, for example, in order to eat or drink, they should separate themselves from others; and (3) They should self-monitor for symptoms and seek re-evaluation from occupational health or their personal healthcare provider if symptoms recur or worsen.

In an unexpected move, late on Friday night, the Sixth Circuit Court of Appeals lifted the stay on OSHA’s regulation requiring businesses with at least 100 employees to ensure that workers are either vaccinated or tested weekly and wear masks. Shortly thereafter, an emergency appeal was made to the United State Supreme Court. OSHA issued a statement over the weekend, stating that employers would have until January 10 to comply with the standard. Additionally, OSHA stated that it “will not issue citations for noncompliance with the standard’s testing requirements before Feb. 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”

As we had previously discussed, the OSHA rule would apply to fiscal intermediaries in New York to the extent they are considered a joint employer of the personal assistants. The issue is slated for Supreme Court review, but it is unknown how the Supreme Court will rule.

We will continue to monitor this issue and advise of any updates.

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.