Category: Home Care Developments

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.

The New York Department of Health (“DOH”) has issued a Dear Administrator Letter (“DAL”), stating, “beginning November 22, 2021, all covered entities must ensure that covered ‘personnel’ under the Department’s August 26, 2021 – Prevention of COVID-19 Transmission by Covered Entities Emergency Regulation [the “Vaccine Mandate Regulation”] who were previously granted religious exemptions have documentation of either a first dose COVID-19 vaccination or a valid medical exemption.’

As providers know, since the Second Circuit upheld the Vaccine Mandate Regulation, covered agencies were required to come into compliance and ensure that covered healthcare personnel were vaccinated in accordance with the Vaccine Mandate Regulation. The Second Circuit’s decision, issued on a Friday night, left many providers in a difficult position because they did not have time to remove their caregivers with religious exemptions from field work. Since that time, many efforts have been made to urge the State to issue some sort of relief that would excuse those providers who were unable to come into compliance with the Second Circuit’s decision right away. Today’s DAL arguably provides that relief. While the DOH’s DALs are not binding on OMIG, OMIG will often accept DALs and defer to them in audits. Thus, this DAL should be helpful in the event that OMIG seeks to recover any monies billed and paid for cases worked by unvaccinated caregivers who were working under a religious exemption, at least until November 22, 2021. Providers who have not removed their unvaccinated caregivers from cases should immediately move towards compliance.

This DAL, however, does not provide any relief to covered providers who have been employing caregivers and office staff without a religious or medical exemption since October 7, the date that the Vaccine Mandate Regulation went into effect.

The DOH’s DAL also states that “Facilities should have a process in place to consider reasonable accommodation requests from covered personnel based on sincerely held religious beliefs consistent with applicable Federal and State laws, including Equal Employment Opportunity (EEO) laws such as Title VII of the Civil Rights Act and NYS Human Rights Law, and their applicable guidance.” As we have noted in the past, although the Vaccine Mandate Regulation does not permit the granting of a religious exemption to covered personnel, the DOH cannot preclude the employer from complying with the Title VII and New York Human Rights Law requirements, which require employers to consider provision of reasonable accommodations for sincerely held religious beliefs. While, practically speaking, there is unlikely to be a reasonable accommodation for a caregiver who refuses to vaccinate due to religious reasons, for purposes of complying with federal and State employment laws, providers must ensure that they are at least engaging in the interactive process and considering the provision of reasonable accommodations to every employee who requests one due to religious reasons. The reasonable accommodation process must be followed for all employees, even though the outcome of such process might end up to be the same; termination of employment for refusal to vaccinate. Human Resources departments should work closely with the Directors of Patient Services to ensure that the clinical and employment requirements are being followed in these religious accommodation cases.

If you need any assistance with compliance with the DAL or the vaccine mandate, please do not hesitate to reach out.

On November 10, 2021, 10 states led by Eric S. Schmitt, the attorney general of the State of Missouri, filed a lawsuit in the U.S. District Court for the Eastern District of Missouri seeking a declaratory ruling, as well as preliminary and permanent injunctions enjoining CMS from imposing its November 5 vaccine mandate regulation (the “Mandate”). Alaska, Arkansas, Iowa, Kansas, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming are the other states in the suit. This lawsuit is similar to ones challenging OSHA ETS vaccine mandate for companies with 100 or more employees.

Employers (or third parties indirectly covered by the Mandate) should continue planning for compliance, absent further rulings from the court. For CMS purposes, key compliance dates are December 5 and January 4.

Last night, the OSHA regulation requiring vaccination or weekly testing for all employees of employers with 100 or more employees was blocked again by the Fifth Circuit Court of Appeals in New Orleans, which called the OSHA rules a “mandate” and added that it “grossly exceeds OSHA’s statutory authority.”

The court had previously stayed the order pending a range of legal challenges. The court ordered OSHA to “take no steps to implement or enforce the Mandate until further court order.”

As we have noted on various seminars, the legality of the OSHA ETS likely will not be definitively decided until it is reviewed by the U.S. Supreme Court. The Justice Department, which was contesting the appeals court’s original stay, responded to the ruling in a statement: “Today’s decision is just the beginning of the process for review of this important OSHA standard. The department will continue to vigorously defend the standard and looks forward to obtaining a definitive resolution following consolidation of all of the pending cases for further review.”

We will provide more information on the OSHA ETS as the litigations make their way through the courts. In the meantime, employers who might be covered by the ETS should reach out to counsel and discuss how/if/when to prepare for the potential implementation of this regulation.

This morning, the Occupational Safety and Health Administration (“OSHA”) released its highly anticipated emergency temporary standard (“ETS”) requiring businesses with at least 100 employees to mandate that their employees get vaccinated against the coronavirus or wear a mask and test for COVID-19 on at least a weekly basis. Personal assistants – to the extent they are deemed to be jointly employed by the consumer and the FI – would be covered by this ETS.

We are currently reviewing the 490-page OSHA regulation and analysis, but here are some quick takeaways, as relevant to home care providers in New York:

1.   The ETS applies to companies with 100 or more employees. Part-time and full-time employees “count” for purposes of determining if this threshold is met.

2.   The ETS requires employees to be either fully vaccinated or to receive a weekly COVID-19 test in lieu of vaccination. The ETS defines what constitutes an acceptable COVID test, but notably a self-administered and self-read test is not acceptable unless observed by the employer or an authorized telehealth proctor.

3.   The White House has announced that covered employers are not required to pay for or provide the COVID tests for employees who undergo weekly testing, unless they are otherwise required to by state or local laws or in labor union contracts.

4.   Religious and medical exemptions from the vaccine mandate will be permitted.

5.   Employees who are not fully vaccinated will be required to wear face coverings in work settings (e.g., office, car if traveling with a coworker). Religious and medical exemptions from the face covering requirement are permissible.

6.   Employees who work from home and never come into the office “count” for purposes of determining the 100-employee coverage threshold. However, employees who work remotely full time and are not “exposed to any potentially infections individuals at work” are exempt from the vaccine mandate. Employees who switch back-and-forth between telework and working in a workplace setting will be covered by this ETS.

7.   Previously-infected employees who might have natural immunity to COVID are not exempt from the ETS.

8.   Employers are responsible for determining the vaccination status of their employees. Employees will be considered “fully vaccinated” two weeks after the full required vaccine course is completed.

9.   The ETS is in many respects similar to the DOH’s regulation requiring vaccination of healthcare workers; recordkeeping and proof of vaccination standards are the same.

10. Covered employers must provide paid time off to employees to become vaccinated and in the event that an employee experiences side effects from the vaccine. For New York providers, however, these obligations are already codified in the law and require paid time off to be provided in these circumstances. Thus, this paid time off requirement will not impose any new obligations on employers in New York State.

11. Healthcare employers who are covered by OSHA’s earlier ETS for healthcare employers will not be required to comply with today’s released ETS. However, as we previously noted, because the healthcare employer ETS is likely inapplicable to most LHCSA office settings, today’s new ETS will apply.

12. Any employee who tests positive or is diagnosed with COVID must be immediately removed from the workplace until the employee receives a negative test result, receives a recommendation to return to work from their health care provider, or meets the CDC isolation guidance standards. These requirements would apply regardless of the employee’s vaccination status.

13. The commentary to the ETS states, “For enforcement purposes, traditional joint employer principles would apply.” Thus, to the extent the personal assistants are deemed to be jointly employed by the FI, those personal assistants who are working for FIs with 100 or more employees will be subject to the vaccine or weekly testing requirements.

14. The ETS will take effect 30 days from November 5, 2021, which is December 5. However, the requirement to conduct weekly tests for employees who are not vaccinated will not take effect until January 4, 2022. From December 5 until January 4, unvaccinated employees will be required to wear face masks in workplace settings.

For clients who have any questions or need assistance with preparing to comply with these requirements, please do not hesitate to reach out to us.

By orders issued shortly after 5:00 pm today, the Second Circuit vacated the Statewide order of federal Justice Hurd of the United States District Court for the Northern District of New York, which had established the right of providers to grant religious exemptions.

As we had reported, earlier this month, Judge Hurd issued a Statewide injunction, ordering healthcare providers to consider and, where appropriate, grant religious exemptions from the NYS healthcare worker vaccination mandate to employees.  Under Judge Hurd’s order, covered providers were allowed to continue employing home care workers whose sincerely held religious beliefs prevented them from complying with the State’s healthcare worker vaccination mandate. However, as a result of today’s Second Circuit’s vacatur of Judge Hurd’s decision, the Department of Health may proceed to enforce the vaccine mandate against healthcare workers as the vaccination mandate was originally written. The State issued the healthcare worker COVID vaccine regulation, and the regulation did not allow providers to consider and grant religious exemptions to healthcare workers. It was only because of litigation and Justice Hurd’s order that agencies were permitted to continue employing aides under a religious exemption. Again, with today’s Second Circuit order, covered home care providers are expected to comply with 10 NYCRR 2.61 to the full extent, and Section 2.61 only allows providers to grant medical (not religious) exemptions from the State mandate for employees of LHCSAs and other covered providers.

Employees of home care agencies who are currently working under the religious exemption must immediately be vaccinated or inactivated. It is not clear how quickly the Department of Health will move to enforce Section 2.61, but as a result of today’s Second Circuit decision, workers in the field who are working under a religious exemption basis are out of compliance. This means that their employers, the LHCSAs and other covered healthcare providers who employ those workers, are also out of compliance.

The litigation regarding the religious exemption will continue, but there is no longer a Statewide injunction in place allowing providers to continue providing the religious exemption. We will update you on further developments in the litigation.

Full opinions from the Second Circuit on today’s decisions will follow shortly and we will report on that when the opinions are published.