DOH Postpones Wage Parity Certification Deadline

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

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

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 

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.

LHCSA RFO Scheduled for Implementation on May 1, 2022 Is your Agency Ready for the RFO?

Recently, the New York State Department of Health published its FY 2023 “Medicaid Scorecard” that outlines various Medicaid-related initiatives for the upcoming year. Of interest to home care providers, the Scorecard was updated to state that the LHCSA RFO “re-estimate[d]” “Implementation date” will be May 1, 2022. There was no explanation of what this practically means. It is impossible for the State to issue a Request for Offers from interested LHCSA applicants, collect responses, and evaluate them all in time to implement the RFO by May 1, 2022. Thus, this May 1, 2022, might be a target date by which the State intends to issue the actual requests for proposals. We’ve been hearing for months that the actual RFO application for LHCSA is done and under legal review. The State has been steadfast that the RFO will be issued, eventually. However, if the CDPAP RFO is any indication, it will be years before the LHCSA RFO is actually implemented.

Nonetheless, the LHCSA RFO is unlikely to be repealed in this year’s budget bill. And the Executive’s proposal for MLTC RFOs evidences the State’s interest in consolidating the home care market, among providers and payors. Thus, with no immediate repeal of the LHCSA RFO in sight, LHCSA providers will have to go through the process of responding to the request for proposals.

As a reminder, per the State’s law, all LHCSA RFO responses will have to address the following categories:

  1. Licensure under Article 36 (which appears to mean that entities that wish to be licensed but that are not licensed cannot apply);
  2. The ability to appropriately serve Medicaid recipients, “as determined by the Commissioner;”
  3. Geographic distribution of LHCSAs to ensure access statewide, including in rural and underserved areas;
  4. Demonstrated cultural and language competencies specific to the population of recipients and those of the available workforce;
  5. Ability to provide timely assistance to recipients;
  6. Experience serving individuals with disabilities;
  7. Efficient and economic administration of LHCSA services; and
  8. Demonstrated compliance with all applicable federal and state laws and regulations, including wage and labor standards, compliance with EEO and anti-discrimination laws.

If you have any questions about the LHCSA RFO or wish to discuss preparation for the RFO, please do not hesitate to reach out to our firm.

Quarantine and Isolation Rules for Healthcare Personnel are Revised, Again

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.

Changes to Independent Assessor Procedures Postponed until May 1

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.

Telephone and Video Nursing Supervision Visits Allowed to Continue for LHCSAs

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.

Booster Shots for Covered Healthcare Staff Due by February 21

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.

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.

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

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:

  1. 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;
  2. the extent to which major public hospitals are included in the submitted provider network;
  3. demonstrated cultural and language competencies specific to the population of participants;
  4. the corporate organization and status of the bidder as a charitable corporation under the not-for-profit corporation law;
  5. the ability of the bidder to offer plans in multiple regions;
  6. the type of number of products the bidder proposes to operate;
  7. whether the bidder participates in products for integrated care for participants who are duly eligible for Medicaid and Medicare;
  8. whether the bidder participates in value-based payment arrangements;
  9. the bidder’s commitment to participation in managed care in the State;
  10. the bidder’s commitment to quality improvement;
  11. the bidder’s commitment to community reinvestment spending, as will be defined by the Commissioner;
  12. 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.