These week two significant announcements were made impacting home care companies:
Department of Labor – Delay in Wage & Hour Enforcement for Personal Care Workers
First, the Department of Labor finally announced that there will be a delay in the enforcement of the Wage & Hour requirement for personal care workers from the initial date of January 1, 2015 to June 30, 2015. This is what the industry has referred to as the “Companionship Exemption” whereby personal care workers are exempt from wage and hour laws (minimum wage and overtime) due to the nature of their work. Industry stakeholders (national associations and providers) have been strongly opposed to this for two main reasons:
- The increased costs are going to be passed on to the consumer.
- Medicaid rates will not be increased in time for the January 1, 2015 implementation and possibly not in time for the new date of June 30, 2015.
The Department of Labor refers to the delay as a “time-limited non-enforcement” policy and policy analysts are warning that this is not an implementation delay but rather an enforcement delay that only impacts DoL enforcement. Third parties (workers, labor unions) will likely latch hold to this and make things interesting. Providers are going to be confused about whether or not they should be following wage and hour laws for their personal care workers starting January 1, 2015. At this time, it appears that the message should be clear that this is an enforcement delay and not an implementation delay. Any delays in implementation could put them at risk for lawsuits from third parties (not the government).
Further analysis is coming from the attorneys and analysts within home care. I will share information as it becomes available. Information about the delay can be found here: http://social.dol.gov/blog/an-announcement-concerning-the-home-care-final-rule/. NAHC’s take on it is provided here: http://www.nahc.org/NAHCReport/nr141008_1/
Medicare – New Conditions of Participation for Home Health Agencies
CMS has released new Conditions of Participation (COPs) for Medicare-certified home health agencies across the country. These have been published in the Federal Register and are up for a 60-day comment period ending December 8, 2014. The link to the new COPs is here: https://www.federalregister.gov/articles/2014/10/09/2014-23895/medicare-and-medicaid-program-conditions-of-participation-for-home-health-agencies.
The common summary being circulated with the changes to the COPs includes the following:
CMS proposes to transform the HHCoPs using the following principles:
- Develop a more continuous, integrated care process across all aspects of home health services, based on a patient-centered assessment, care planning, service delivery, and quality assessment and performance improvement;
- Use a patient-centered, interdisciplinary approach that recognizes the contributions of various skilled professionals and their interactions with each other to meet the patient’s needs;
- Stress quality improvements by incorporating an outcome-oriented, data-driven quality assessment and performance improvement program, specific to each HHA;
- Eliminate the focus on administrative process requirements that lack adequate consensus or evidence that they are predictive of either achieving clinically relevant outcomes for patients or preventing harmful outcomes for patients;
- Safeguard patient rights.
CMS proposes the most significant changes with the following new or revised CoPs:
- The CoP for “Patient rights” emphasizes a HHA’s responsibility to respect and promote the rights of each home health patient.
This revision expands the current patient right CoP at §484.10 by requiring the agency inform the patient of their rights both in writing and verbally; focuses on accommodating and complying with Limited English Proficiency requirements; and increases patients rights in regards to care planning.
The CoP is organized into six standards: 1) Notice of Rights; 2) Exercise of rights; 3) Rights of the patient; 4) Transfer and Discharge; 5) Investigation of complaints; and 6) Accessibility.
- The CoP for “Care planning, coordination of services, and quality of care” would incorporate the interdisciplinary team approach to provide home health services focusing on the care planning, coordination of services, and quality of care processes.
Hot button issues are being identified at this time, but none have been discussed quite yet.
Once the 60-day comment period concludes there is no telling when the COPs will be final (Possibly we will know the final rule by the end of the first quarter 2015.).
The challenge for HHA’s and other providers is that the rules change, almost weekly. Our task is to stay abreast of these changes and become more and more agile as the days and months go by.
