“We are excited to have the opportunity to serve CDPAP consumers and personal assistants,” Maria Perrin, chief growth and strategy officer at PPL, told Home Health Care News. “Consumer direction programs are all we do as a business. For years, we’ve not only been operating throughout several states, but we’ve made it our purpose and mission to advance access to consumer direction and make these programs stronger, sustainable and more culturally competent. This is a great opportunity for us, and we are really excited to be partnering with our [fiscal intermediary] partners.”

Through CDPAP, a Medicaid-funded home care program, people seeking care are allowed to hire a caregiver of their own choosing. This often means informal caregivers, which are paid for their services through the program.

Roughly 700 businesses currently serve as fiscal intermediaries, many of which are home care providers themselves. The state is looking to save $1 billion annually by appointing one administrator.

As part of the agreement, PPL must work with four local organizations, and a network of 30 home care agencies.

“Our approach to this was to make sure that we put together a partnership with existing CDPAP fiscal intermediaries and with the independent living centers,” Perrin said. “That would make sure there’s ample capacity from a volume standpoint and from a linguistic standpoint, making sure that people who are not english speakers continue to be served. That people who have disabilities, or cultural or religious considerations, would continue to be served. At this point, we have over 30 existing CDPAP fiscal intermediary partners that we’ve identified, in addition to the 11 independent living centers, who will continue their work.”

Perrin noted that with state approval, PPL is open to identifying and partnering with even more organizations.

PPL will also relocate its headquarters to New York. The move will create over 1,200 jobs, according to a press statement.

Additionally, The Chinese American Planning Council will aid in managing the program in Long Island, Westchester County and New York City.

Uncertainties around CDPAP

With these changes to CDPAP, Emina Poricanin, founder and managing attorney of the New York-based Poricanin Law, believes that many providers will be weighing their options.

“As far as the providers are concerned, this is just additional uncertainty about their future as a business,” she told HHCN. “A number of them are, even more expeditiously, exploring other lines of personal care services that they can offer in New York State because they have no choice but to pivot from this program.”

For some, this means transitioning patient care hours into a traditional licensed home care services setting and out of CDPAP, Poricanin noted.

In addition to fiscal intermediary restructuring, Poricanin pointed to the significant decrease in reimbursement rates as another area of concern for providers.

“[It] takes out, largely, any incentive for a provider to be in this program,” she said. “Irrespective of what happens with PPL, or any single statewide fiscal intermediary, there’s simply very little money in this program. Therefore providers, regardless of what happens with the single statewide [fiscal intermediary] restructuring, should and are looking long term into what they can do with this line of business.”

Poricanin also believes that the state may see additional lawsuits, specifically ones that challenge if the appointment was a true competitive bidding process.

“The number has not been released, but based on my own knowledge of the market, I assume there were at least 200 applications that were submitted to New York State, and yet they were able to turn those around from mid-August and send out rejection letters yesterday,” she said. “How did they get through all of those applications that quickly, if they were actually reviewing the applications and giving each applicant a fair opportunity to apply? That is probably going to be the subject of some litigation — that the process was not conducted fairly.”

The post Amid Ongoing Controversy In New York, Public Partnerships Is Awarded CDPAP Contract appeared first on Home Health Care News.

New York’s CDPAP allows people who need home-based care to hire a caregiver of their choosing. Generally, this means informal caregivers. The program compensates caregivers for their services, and there are about 700 businesses that serve as fiscal intermediaries.

As part of New York’s 2025 budget passing, the State Department of Health has announced its intention to cast aside the majority of fiscal intermediaries, in favor of just one.

The lawsuit — which was filed against the Department of Health in Albany Supreme Court on Friday — alleges that the state’s changes are unlawful, as it excludes New York bidders.

“This is about survival for them,” Emina Poricanin, founder and managing attorney of the New York-based Poricanin Law, told Home Health Care News. “Their businesses are going to be gone, essentially, overnight. Everything that they’ve spent years building, they will be required to turn over to this newly appointed entity, which is not even going to be a New York entity. They’re hoping to either invalidate the law permanently, or at least stop this RFP from taking effect on Oct. 1.”

The law requires that companies hoping to serve as the sole fiscal intermediary need to have experience in another state.

Poricanin believes that the lawsuit has a fair chance of seeing success.

“There are a number of missteps in how the law was passed,” she said. “There’s a significant difference that is accorded to laws that are passed by the full legislature, which is what has happened here, and that are signed into law by the governor. There’s a presumption of legality and lawfulness about a statute like this. However, where I think the lawsuit is more likely to be successful is invalidating how the law has been implemented. With the way that the state has rolled it out through the Department of Health — there are many areas that are open to challenge.”

Last week, a group of home care companies filed a lawsuit that also took aim at New York’s plan to reduce the number of fiscal intermediaries.

Poricanin noted that she believes these will be the first of many lawsuits that will follow.

“If the lawsuit is successful, New York has to go back to the drawing board and find other ways to save money,” she said. “The reason that this was passed is because the governor erroneously thinks that she can save money by consolidating all of these fiscal intermediaries. While many will agree that this program needs a change, this is not the way to go about it.”

Ultimately, Poricanin pointed out that programs like New York’s CDPAP are integral to the provision of home care services.

“These services that we refer to as consumer directed, there’s some form of it in every state,” she said. “New York, obviously, with the population size and the Medicaid size, has probably one of the biggest consumer-directed programs. This is a bad way to go about restructuring, and putting some regulatory controls over this program. The governor has indicated, over the last few days, that she’s open to reconsidering this. I hope that is actually correct and that she will give a more thoughtful look to how this program goes forward.”

The post Lawsuits Push Back Against Looming Changes To New York’s Consumer-Directed Home Care Program appeared first on Home Health Care News.

In the spring of 2022, New York legislators passed a law that gave home care workers an extra $2 per hour above the state’s $15 minimum wage. Another $1 per hour will kick in for those workers in October 2023.

The state then told Medicaid providers that it was committed to compensating them for the added costs associated with the wage increase, which could be as much as $500 million in the first year and $7.7 billion over the first four years, per the New York state government. Most of that money would flow to personal care.

What has materialized thus far hasn’t been what advocates imagined when pushing for the increase in the first place.

“I’m sympathetic to the idea that home health aides are doing important work,” Bill Hammond, senior fellow for public policy at Empire Center, told Home Health Care News. “It can be hard on them physically and emotionally, but the state is already making a lot of questionable choices, fiscally. I think they’re also vulnerable to abuse and an overuse of the Medicaid benefit. If they’re not making any obvious efforts to contain those, and the costs are rising at an unsustainable rate, that all is going to have ripple effects.”

At the same time, home care workers are arguing that the money – which is meant to pay home care agencies enough to cover wages, payroll taxes, benefits and other costs – is not getting to them.

Instead, that money is being collected by private insurance companies who are keeping a vast majority of the funding they receive, according to New York Assembly member Karines Reyes.

Medicaid in New York

It’s important to note that New York’s home care Medicaid program is an outlier. Its spending on the home care benefit is roughly the same as the other 49 states combined, according to Hammond.

“We’re kind of off the charts,” Hammond told HHCN. “And it’s been growing rapidly.”

For the most part, home care worker hiring has matched that growth, compared to the state’s population and other states. For example, if retail clerks and fast food counter workers were combined in New York, that workforce wouldn’t be larger than the amount of home care aides, Hammond said.

“I think it’s primarily driven by the structure of the Medicaid benefit, which is unusually broad and generous,” Hammond said. “We have more people who are receiving this benefit, we’re providing more hours and our wages — until recently — have been on the high end, but they haven’t been off the scale.”

According to a federal analysis of 2019 Medicaid spending, per capita expenditures in New York were 8 times the U.S. average. That spending, Hammond said, has produced an “extraordinarily large workforce.”

The number of home care aides employed in New York grew from 250,000 in 2011 to 480,000 in 2021, accounting for almost two-thirds of the state’s net job growth during that period.

Home care workers initially fought for 150% of the minimum wage before receiving the $3 increase.

“Right now, nursing homes, in particular, are having trouble hiring people,” Hammond said. “If home health is paying over $20 an hour, nursing homes would have to match that in order to hire people, right? I think [lawmakers] are thinking about this in a blinkered way. They’re thinking, ‘Well, my assessment of these workers is that they’re underpaid and we should pay them more just out of moral principle,’ without really thinking through the economic consequences.”

From the caregiver side

From a caregiver’s perspective, there is still a lot to be desired when considering the rollout of these wage increases.

State lawmakers and workers’ union groups have said that because of the sometimes confusing implementation of the new laws, a lot of the money is still going to those above-mentioned private insurance companies.

According to a survey by the New York State Association of Health Care Providers conducted in September, 87% of home care agencies said they have had zero insurance companies reach out about the rate change. Of those that did hear from insurers, 61% reported being offered decreased rates.

Angelo Spinola — the home health, home care, and hospice chair at law firm Polsinelli — recently told HHCN how these new regulations can get off to a slow start.

“New York just increased the minimum wage by $3 only for home care, and you don’t hear a lot of coverage about that, which means that it doesn’t always filter down to the provider,” Spinola said. “The provider ends up in a situation where something has changed, law has changed, the provider doesn’t know, and now you’ve got the plaintiff’s bar coming in, sometimes the government. But generally in those situations it’s lawyers that represent the caregivers, bringing suits saying, ‘Hey, you didn’t do this right,’ and the provider is left flatfooted.”

The situation in New York can also be tied to the state Assembly’s political makeup, Emina Poricanin, managing attorney of the New York-based Poricanin Law, told HHCN.

“In other states, Medicare is the primary payer for these types of services,” Poricanin said. “In New York, it’s Medicaid, so you’ve got huge advocacy coalitions between patients and the workers that have been lobbying for these changes, especially now with COVID and how much they were really on the front lines of all of that. It’s created a perfect storm of different factors.”

Lessons to be learned

Because of the way Medicaid is used and reimbursed for in New York, its problems – to some extent – are unique.

Still, other states should understand how New York got to where it is, especially because reimbursement issues are a nationwide problem.

“The phased-in increases to the minimum wage was a great idea in theory, but the reimbursement didn’t keep up,” Poricanin said. “So the providers had the same issues that they had this year, which is why they — in many respects — objected to this. It’s not that they didn’t want their workers to be paid higher. They just weren’t sure that they were getting enough money to pay those workers.”

No state in the country has invested more into home-based care, Hammond said. However, New York’s nursing home population has been declining slower than the national average.

“We don’t seem to be getting that return on investment,” Hammond said. “That tells me they’re not spending that money wisely. They’re not targeting the right people where they can make a difference between going to a nursing home or not. They’re reaching this other group of people who probably aren’t candidates for nursing homes.”

There is a push at the federal level to invest more into home-based care. The key is to invest wisely and in the right places, Hammond said.

“My contention is [other states] should be careful when they do that, or they’re going to end up where New York is,” he said. “Where you’ve spent a lot of money on home care and you haven’t actually addressed the issue.”

The post New York’s Mandated Home Care Wage Increases ‘Haven’t Actually Addressed The Issue’ appeared first on Home Health Care News.

For instance, there are currently proposed changes that would have an impact on the test used to determine whether someone is an independent contractor or an employee. Those changes would – in part – affect the analysis of whether a potential employer is exerting control over a caregiver.

Firstly, providers should be aware they can still be sued for improperly classifying a worker as a contractor under the Fair Labor Standards Act (FLSA), Emina Poricanin, managing attorney of the New York-based Poricanin Law, told Home Health Care News.

“Providers should stay on top of the issue, but keep in mind that – irrespective of the final regulation on independent contractors – they can still be sued under the FLSA or other state laws,” Poricanin said. “Those state laws provide, in some cases, greater worker protections in wage and hour than the federal government does.”

In October, the U.S. Department of Labor (DOL) issued that proposed rule, which would also apply to potential employers that include registries, virtual marketplaces or consumer-directed agencies.

The proposal is a significant shift from a few years ago under the Trump administration.

Under the former administration, there was a modification to the independent contractor test, which is the economic realities test under the FLSA.

The modifications made the test simpler and likely easier for non-employers to establish independent contractors were truly independent and not misclassified, Angelo Spinola — the co-chair of the home health and home care industry group at the law firm Polsinelli — told HHCN.

“We’ve known that the Biden administration would try to rake that back,” Spinola said. “In fact, they withdrew a lot of the opinion letters that utilize the updated test. Now, they’re attempting to put a new test in place that is more favorable to establish an employment relationship. That test seems to mirror, in some ways, what the National Labor Relations Board is doing with their joint employment test around indirect control.”

That element takes the test further than it did when the Obama administration was in charge because of the indirect control element, Spinola said.

That change could create some issues for providers.

“I think it’s very challenging when you [classify] control as not actually utilized, or perceived control,” Spinola said. “In other words, just the ability to manage somebody that is not exercised in any way can be considered employment. I think that takes it a step too far. The question should really be about what is actually occurring, not what is possible.”

Spinola said when you look at what is possible, that creates issues for several models – particularly franchise models.

The current test places significant weight on two core factors, Spinola explained. One is the nature and degree of control over the work. The second is the worker’s opportunity for profit or loss based on personal initiative or investment.

The new test will focus on the “economic reality” of the worker’s situation.

Essentially, the new test would ask if workers are economically dependent on the registry or entity sourcing the client for work. If so, they’re an employee.

If a worker is in business for themselves, then they are an independent contractor.

The DOL is encouraging interested parties to submit comments on the proposed rule. The deadline to submit comments is Dec. 13.

What home-based care agencies should know

While the rule will impart some changes if finalized, it shouldn’t surprise home care agencies.

The proposed rule, if anything, should bring some stability and clear guidance to home care providers who might still have questions about how to classify workers, Poricanin said.

“My impression is that the pendulum is swinging back again to what we saw under the Obama administration, and also that the proposed rule would codify what we’d expect the judiciary and state Departments of Labor to determine in any case when it comes to the question of whether a worker is an employee of the provider agency or a registry,” Poricanin said. “We have a plethora of case law already at the federal and state levels on this issue. While this pendulum keeps swinging back and forth every few years on this worker classification question, I consider the issue and questions largely settled for FLSA purposes and home care workers.”

For providers, Spinola said that compliance and due diligence on how contractor models are set up should be a top priority moving forward.

“If it’s a contractor model, I think there needs to be a real focus on compliance and making sure the model is built in such a way that they truly are independent contractors,” he said. “Which has been a major issue in home care, where you’ve got perceived or labeled independent contractor models that are really not that.”

In home care, caregivers are often obligated to follow state-required plans of care, maintain certain certificates or licenses and abide by safety protocols.

Under the proposed rule, those requirements could potentially be deemed as “control,” and therefore employment.

“It affects everybody, because typically you’re going to find some form of independent contracting across any of these industries,” Spinola said.

The post What Home-Based Care Agencies Should Know About The Independent Contractor Proposed Rule appeared first on Home Health Care News.

On the home health side, there’s the new payment rule for 2023 to navigate and the Home Health Value-Based Purchasing (HHVBP) Model. 

There’s also a lot going on with independent contracting that could have an effect on home-based care providers. And, of course, labor continues to be a challenge from recruiting, retention and legal perspectives.

“While the need for services has never been greater, the great exodus of workers from the market — combined with stricter immigration policies — have resulted in labor shortages in an already difficult-to-staff industry,” Emina Poricanin, managing attorney of the New York-based Poricanin Law, told Home Health Care News.

It is particularly interesting, Poricanin said, seeing how states and the federal government have passed various laws to incentivize the recruitment and retention of the workforce into home-based care.

One example is the raise in minimum wage for caregivers in New York.

“In some states like New York, the government has addressed these difficulties by raising the minimum wage, but that has not been funded on a timely or adequate basis,” Poricanin said. “We’re seeing conflicts with managed care and providers to ensure the funds are there to pay these workers. It will be fascinating to see if the government gets their return on investment from all those dollars.”

A service like home-based care that is in high demand — combined with a more informed workforce that is insisting on their rights — creates a dynamic that requires proactive steps from providers.

“A culmination of employment-side legal issues is creating a perfect storm that has befallen providers, just as home care and community-based care is gaining momentum and finally getting the recognition in the health care community that it has long-deserved,” Poricanin said.

Independent contractor changes

Earlier this month, the U.S. Department of Labor (DOL) issued a proposed rule that would have a significant impact on the test used to determine whether someone is an independent contractor or an employee under the Fair Labor Standards Act (FLSA).

All home care and home health agencies should keep a close eye on the rule, Angelo Spinola, the co-chair of the home health and home care industry group at the law firm Polsinelli, told HHCN.

Essentially, the rule will affect the analysis of whether a potential employer — like a registry, virtual marketplace or other agency operating under a consumer-directed service delivery model — is exerting control over a caregiver.

“The registries and the independent contractor models have an unfair advantage by not having to pay for some of the labor costs,” Spinola said. “The way the DOL typically frames that is cracking down on the use of independent contractors, which will level the playing field. So I think that risk of misclassification may cause the agencies to have a better success rate around recruiting and retention. That’s certainly possible.”

If finalized, the rule could have a major impact on the whole home-based care industry.

“It affects everybody, because typically you’re going to find some form of independent contracting across any of these industries,” Spinola said.

How providers should navigate legal obstacles

Following the COVID-19 pandemic, and the issues that occurred in nursing homes and hospitals, home care has a solid seat at the table of the health care continuum. 

Now, many providers are trying to capitalize on that attention and recognition. In order to do that, Poricanin said, providers have to make sure they are maximizing all the government incentive programs for their agencies.

“Home care is in the spotlight, and operators do not have the time, energy or desire to be in the spotlight as a bad employer,” Poricanin said. “Or as an employer that cannot staff cases or respond to referrals.”

For providers, having a specific strategy and executing on it should be top priority moving forward, Poricanin said.

“Many providers have an ad hoc approach to these challenges and do not appreciate where home care stands today versus even five years ago,” Poricanin said. “To be successful, providers need to appreciate the big picture and have a plan to tackle these challenges.”

The post Independent Contractor Changes And Other Legal Trends To Watch In Home-Based Care appeared first on Home Health Care News.

The Fair Pay For Home Care Act has reached a Democratic majority in the state Senate, with additional support from the AARP and other advocacy organizations. The legislation, which would raise wages for New York’s home care employees, has also been a cause for significant enthusiasm among policymakers and workers alike.

Providers likely do not feel the same way, however.

“I think every provider in New York is concerned,” Darby Anderson, the chief strategy officer at Addus HomeCare Corporation (Nasdaq: ADUS), told Home Health Care News.

The Frisco, Texas-based Addus operates 207 locations in 22 states overall, delivering personal care, home health and hospice services to nearly 45,000 individuals. Six of those locations are in the state of New York.

Though operators are generally for higher wages for their workers, with no corresponding rate increases, the legislation amounts to what Al Cardillo – the president and CEO of the Home Care Association of New York State (HCA-NYS) – calls a “fundamental disconnect in policy.”

“We obviously advocate for the workforce, but we are also comprised of provider organizations,” Cardillo told HHCN. “Our concern, and this is where we really diverge, is that whenever there have been these wage laws and requirements, the funding system has never actually followed through and compensated commensurate with what those obligations are.”

Medicaid rates would have to be hiked to compensate providers enough to be able to dish out the required wages for in-home care workers. Furthermore, Medicare is not controlled by the states. So when states or cities create wage mandates, there’s the discrepancy between reimbursement rates and wage rates.

Instead, increased wages should be a part of an overall structural change, Cardillo argued. The structural change should be put in place, in the form of increased reimbursement rates, and then the system should work backwards to pay higher wages.

For years, HCA-NYS has been trying to advocate for legislation that would require the state to conduct a “competitive labor market analysis.” That analysis would determine appropriate price points for the labor market as well as the thresholds that need to be reached rate-wise to match those price points.

Addus has asked for the same, but neither organization has been successful in its efforts.

“When they introduce these kinds of bills, we always ask for a fiscal study on what it’s going to cost,” Anderson said. “Because they don’t factor in the Medicaid provider networks.”

National ramifications

Wage mandates and hikes are gaining steam across the country. Most notably, the Biden administration has its endorsement of the “Fight for $15” movement.

Blanket wage increase mandates, in addition to the targeted ones like the Fair Pay For Home Care Act, are becoming common. In New York’s case, Gov. Kathy Hochul has touted the idea that legislation can end the labor pressures facing the industry.

Other lawmakers believe the Fair Pay For Home Care Act would do just that. The legislation would ensure that home care workers, beginning Jan. 1, 2023, would be paid at least 150% the rate of the applicable minimum wage in a given area.

“It is imperative in New York State that we look after our community’s elderly and most vulnerable members. That is why I am proud to support the Fair Pay for Home Care Act,” New York State’s Assembly Majority Leader Crystal Peoples-Stokes said in a statement. “This legislation will help to address home care shortages and ensure that essential home care workers are paid fair wages.”

There are examples of these pressures hurting home-based care providers in other states. Albeit not under the exact same circumstances, Bayada Home Health Care recently confirmed that it is laying off 682 workers in Florida while closing four of its locations in the state.

The company cited “external forces” that caused its decision to close its Medicaid-based personal care locations.

While wages have been rising for many home- and community-based services providers, a lack of state investment in reimbursement structures has put providers in a precarious position.

At this point, the Fair Pay For Home Care Act is not in the executive budget proposal in New York, but could potentially be added.

“We don’t know if the legislature will propose it,” Emina Poricanin, managing attorney of the New York-based Poricanin Law, told HHCN in an email. “In New York, a proposed budget is put forth and then the legislature has an opportunity to introduce amendments to it. The final budget is a combination of these proposals and compromises. There are certainly groups pushing for it, and there are other efforts by the governor to reward health care workers generally in the proposal.”

Meanwhile, different legislation has been put forth in New York that aims to help home-based care providers. Drafted by HCA-NYS, the State Assembly introduced this week the “New York Home Care First Act.”

It would “reprioritize home care as a primary option for patients across the continuum of need, and conceptually aligns the state’s policies, rates and procedures with this principle,” according to a press release.

“Individuals across the continuum of need and at risk of institutionalization who could be appropriately and beneficially served by home care should inarguably have this option,” the press release read. “To make this option viable, HCA argued that the state’s policies, financing, supports and related health strategies must be firmly and consistently aligned to this goal.”

The post ‘A Fundamental Disconnect in Policy’: Wage Hike Mandates Leave Home-Based Care Providers Behind appeared first on Home Health Care News.

A similar challenge in the state of Maine had previously reached the Supreme Court, with the same outcome. A handful of other states have been operating with mandates for some time as well.

“I am not surprised by this outcome,” Emina Poricanin, managing attorney of the New York-based Poricanin Law, told Home Health Care News in an email. “The fate of Maine’s challenge to the Supreme Court foretold this outcome for New York. By this point, due to the Second Circuit’s decision refusing to grant an injunction, health care providers in the state have gone ahead and enforced the mandate – without religious accommodations. Thus, this decision will have little practical impact on providers.”

The Supreme Court decision was under an emergency application, so there was less reasoning provided than usual.

Justice Neil Gorsuch, however, did offer commentary in his dissent, explaining that “thousands” of health care workers should have a right to forgo vaccination due to religious beliefs. Without that exception, those individuals could lose their jobs and right to unemployment benefits, he explained.

Because there was no full written conclusion, it is difficult to see exactly how the ruling could affect national mandates from the U.S. Centers for Medicare & Medicaid Services (CMS) or the Occupational Safety and Health Administration (OSHA).

“This ruling does not mean the Biden Administration’s mandates for health care workers, employees of federal contractors, or employers with over 100 employees will find similar favor at the highest court,” Keith Wilkes, a partner at Hall Estill, said in a statement shared with HHCN. “The legal challenge for those federal mandates is far different, focusing on whether the federal administrative agencies issuing the mandates exceeded their rule-making authority under federal law. In the past, the Supreme Court has kept a close eye on government overreach by administrative agencies.”

There are other interesting takeaways as well.

It seems, for example, that the courts are giving much more weight to medical exemptions than religious ones, Angelo Spinola, the co-chair of the home health and home care industry group at the law firm Polsinelli, told HHCN in an email.

“This ruling effectively means that the majority of justices believe that the states have the right to require coronavirus vaccinations as a condition of employment without allowing for the same religious exemptions that we see under some federal laws like Title VII,” Spinola said. “In other words, the majority believe that [a] state government’s right to take measures to protect health care workers and patients from COVID trump the right of health care workers’ to refuse to become vaccinated based on a religious objection and continue to work.”

The post Supreme Court Keeps NY Vaccine Mandate Alive. Here’s What Home Health Providers Should Know. appeared first on Home Health Care News.

Since the Centers for Medicare & Medicaid Services (CMS) released its interim emergency regulation relating to the federal government’s vaccine mandate last Thursday, more clarity has come to the surface.

Specifically, CMS has made clear what health care providers are included, what individuals can be exempt and how the mandate will be enforced.

What came as somewhat of a surprise was the fact that home- and community-based services (HCBS) providers were not included in the mandate. It instead only applies to providers regulated under the CMS Conditions of Participation (CoPs), which includes home health agencies, and, overall, nearly 76,000 providers and 17 million health care workers.

No one knows the exact thought process behind that decision for CMS, Darby Anderson, the chief strategy officer at Addus HomeCare Corporation (Nasdaq: ADUS) and vice chairman of the Partnership for Medicaid Home-Based Care (PMHC), told Home Health Care News.

“I assume it was a decision of where to draw the line,” Anderson said. “Using CoPs makes sense, as it is a clear way to define the service and personnel providing it consistently across states which have varied definitions on HCBS personnel types. It is helpful from the perspective of allowing waivers and testing options to keep staff employed.”

Because of the enormous complexity that goes into an interim emergency regulation like this one, leaving out HCBS providers allowed CMS to be more concrete with its guidelines.

But between the CMS mandate, the Occupational Safety and Health Administration’s (OSHA) coinciding guidelines for private businesses and state mandates, there is a lot for providers to sort through.

“It is layer upon layer of regulation and requirements that are not always easy to understand,” Emina Poricanin, managing attorney of Poricanin Law, told HHCN.

The CMS mandate doesn’t just apply to patient-facing workers, but full-time telework staff are exempt. It also does not allow for opt-outs, where an individual can instead be tested weekly in lieu of being vaccinated.

That could potentially squeeze some workers out of home health care and other health care settings. It could also give providers not included in the emergency regulation an edge, if they are OK with employing unvaccinated workers.

Along with HCBS providers, assisted living facilities, group homes and physician’s offices are not subject to the mandate.

Speaking at the 2021 Credit Suisse Healthcare Conference on Monday, Encompass Health (NYSE: EHC) President Mark Tarr suggested the loss of some clinicians from the health care workforce is inevitable.

“We continue to look at the details of the president’s mandate that came out last week from CMS, … and we obviously will comply with the mandate,” Tarr said. “I do think that we will see – now that it’s clear that this is the direction – a higher percentage of our staff go out and get the vaccination. But we will have a percentage of our staff that decide that they’re going to leave the health care practice because they don’t want to get vaccinated, so that’s unavoidable.”

What could exacerbate that departure from the field is the inability to opt-out of the vaccine and instead receive weekly testing.

“Having experience in a state like New York, which also does not allow for a weekly test-out option or a religious exemption in its mandate, I have mixed feelings about CMS’ regulation,” Poricanin said. “Not allowing weekly testing as an opt out takes away options for employees who do not wish to be vaccinated. But on the other hand, it helps employers who – in some states – might be required to pay for the time employees spend getting tested on a weekly basis.”

Employers will, however, have to pay for time off for employees to get vaccinated and for any sickness that derives from the process.

The CMS mandate – unlike the ones in Maine and New York – is also allowing more flexibility around religious exemptions.

“Many employees will flock to these exemptions and submit requests, professing to have sincerely held religious objections to the mandate,” Poricanin said. “From my experience, I expect that employers who are short-staffed – as most of them are – will accept these religious exemption requests and allow the non-vaccinated caregivers to work. The religious exemption will open the door for many employees to maintain their employment and avoid vaccination.”

The barrier to compliance

According to CMS, providers must do three things in order to be considered in compliance with its emergency regulation.

First, providers must implement a process or plan for vaccinating all eligible staff. They must also have a plan for how they’re handling exemptions and accommodations for workers who are exempt. Lastly, providers must outline how they plan on tracking and documenting staff vaccinations.

Workers need to have received one shot of a two-dose vaccine or one dose of the Johnson & Johnson (NYSE: JNJ) vaccine by Dec. 5. They must be fully vaccinated by Jan. 4 of 2022. Booster shots are not yet included in the mandate’s guidelines, but are strongly encouraged by CMS.

For those who do seek exemption status – either for religious or medical reasons – they must go through a process that’s required to be put in place by the provider.

If they are citing medical grounds, workers must provide documentation from a licensed practitioner. That documentation must include a signature from the practitioner, as well as the reason why the vaccine would be bad for their health and a recommendation from the practitioner specifically saying that the worker should not receive the vaccine.

On the religious grounds end, providers must “ensure all requests for religious exemptions are documented and evaluated in accordance with applicable federal law and as a part of the facility’s policies and procedures,” according to CMS.

The latter is far more likely to keep unvaccinated workers in home health than the former. It’s also still unclear how strict the threshold for religious exemptions will be, and which party will be the deciding factor: the provider or the government.

As for oversight overall, CMS says that it will be working with both state survey agencies and accrediting organizations to assess compliance. Those agencies will be conducting on-site reviews of agencies through recertification surveys and complaint surveys.

If a provider is found not to be in compliance with the mandate, they will be given an opportunity to return to compliance. After that, however, CMS may use enforcement remedies such as “civil monetary penalties, denial of payment and even termination from the Medicare and Medicaid program.”

The post ‘Layer Upon Layer of Regulation’: Breaking Down the CMS Vaccination Mandate appeared first on Home Health Care News.

On Monday, New York’s vaccine mandate for home-based care workers – and all other health care workers – took effect. Meanwhile, booster shots have been recommended for certain demographics in the U.S., including a lot of those who both receive home-based care and provide it.

The severity of the staffing shortcomings that could come from vaccine mandates is made evident by how New York’s government is preparing for them.

“We are still in a battle against COVID to protect our loved ones, and we need to fight with every tool at our disposal,” New York Gov. Kathy Hochul said in a statement. “I am monitoring the staffing situation closely, and we have a plan to increase our health care workforce and help alleviate the burdens on our hospitals and other health care facilities.”

That plan is to deploy National Guard members to make up for the loss of unvaccinated workers in the state. It was outlined by the Governor’s office in a release that called a possible shortage “preventable,” which some home-based care providers may disagree with.

While the state of New York does not have up-to-date information on how many home health or home care workers have been vaccinated, its recent numbers have hospital workers at 84% vaccinated, adult care facility staff at 81% vaccinated and nursing home staff at 77% vaccinated

A recent study from Caring.com of 2,000 in-home caregivers, however, found that just 50% of them were fully vaccinated. Of those who weren’t, 27% had at least started the vaccination process, while the remaining 23% had not, though those numbers have likely improved.

“Providers are continuing to hope that there will be a last-minute change but are otherwise moving forward with efforts to vaccinate as many of their caregivers as possible and to develop emergency plans in the event of a worker shortage,” Emina Poricanin, managing attorney of Poricanin Law, told Home Health Care News.

Gov. Kochul also reiterated that health care workers terminated for being unvaccinated are unable to apply for unemployment benefits.

“The plan includes preparing to sign an executive order if necessary to declare a state of emergency that seeks to increase workforce supply and allow qualified health care professionals licensed in other states or countries, recent graduates, retired and formerly practicing health care professionals to practice in New York State,” the governor’s announcement said. “Other options include deployment of medically-trained National Guard members, and partnering with the federal government to deploy Disaster Medical Assistance Teams (DMATs) to assist local health and medical systems.”

Expediting visas for eligible health care workers was also mentioned in the plan.

Although home-based care staff is included in the vaccination mandate, it’s unclear whether those emergency staffing-shortage mitigation efforts would apply to them.

“I do not think that there are enough National Guard for home care,” Poricanin said. “That might be a solution for hospitals and nursing homes, but not home care.”

In the meantime, there are a plethora of litigious efforts taking place across New York. Two cases in particular regarding exemptions and the general power of the state to make this sort of mandate could make it to the U.S. Supreme Court, Poricanin said.

Particularly of note is a lawsuit that had been filed by the nonprofit group “We the Patriots USA.” On Friday, the United States Court of Appeals for the Second Circuit granted an injunction to the nonprofit, which had filed a lawsuit seeking to stop the enforcement of the health care worker vaccination mandate.

After an initial, unsuccessful attempt, the nonprofit appealed its loss to the Second Circuit Court of Appeals. On that appeal, We The Patriots USA requested an injunction to prohibit the enforcement of the Mandate while their appeal is pending.

The Second Circuit granted the injunction late on Friday, according to a note from Poricanin Law.

Booster shots

As home-based care providers are vying for their workers to be vaccinated for the first time, some Americans are already getting their third shot, a “booster” shot, which was approved by federal regulators recently.

Front-line workers, older Americans and others with medical conditions all are eligible for the booster shot, with more Americans likely becoming eligible as their first vaccine’s effectiveness wanes over time.

President Joe Biden himself received the booster shot on camera Monday afternoon.

“Let me be clear,” Biden said. “Boosters are important. But the most important thing we need to do is get more people vaccinated. The vast majority of Americans are doing the right thing.”

Now that booster shots have been given the go-ahead, it’s safe to assume some providers and states will eventually be requiring those as well sometime down the line.

“New York has followed CDC’s guidelines thus far,” Poricanin said. “I expect that the state will adopt the CDC’s recommendations in this regard also.”

In all likelihood, workers that were willing to get the first and second doses – or just one in the case of Johnson & Johnson (NYSE: JNJ) recipients – will have no problem getting a booster. But it could become another operational hurdle for home-based care providers across the country already facing staffing struggles.

The post States Take Emergency Measures to Combat Staffing Shortages, as Providers Ponder Boosters appeared first on Home Health Care News.

After President Joe Biden announced Thursday a new, six-pronged approach to his administration’s COVID-19 strategy that requires most home health workers to be vaccinated against the virus, many questions and concerns remain.

More clarity is likely to come to light as specific agencies deal with the next steps following the mandate’s release, like the Department of Labor (DOL) and the U.S. Centers for Medicare & Medicaid Services (CMS).

“Ensuring that all frontline health care staff are vaccinated just makes sense,” Katie Smith Sloan, the president and CEO of the aging services advocacy organization LeadingAge, said in a statement. “This action not only shores up protection for older adults who move across care settings, but also levels the playing field among providers competing for in-demand health care workers.”

The National Association for Home Care & Hospice (NAHC) immediately had questions for CMS after the announcement, one of which has already been answered. Its president, William A. Dombi, asked who exactly the vaccination requirement would apply to in home health.

The CMS answer to that question was shared with Home Health Care News.

“The staff vaccination requirement would only apply to Medicare and Medicaid-certified provider and supplier types that are regulated under the Conditions of Participation,” the agency said. “If an entity is not regulated under the CoPs, then this requirement would not apply.”

Other questions still remain though, including when the interim final rule would be published, what the deadline for employees to get vaccinated would be, what exemptions would exist and how vaccination status would be monitored, among others.

While the announcement will certainly send some agencies with lower vaccination rates scrambling, it may be welcomed guidance for others.

“I think for many providers this is welcome news, especially those in the home-based care industry, who are looking for consistency and a significant measure by the federal government,” Matt Wolfe, a partner at law firm Parker Poe, told HHCN. “At the same time, providers within the home-based care space are going to have to wait and see exactly how CMS rolls this out, … how it will be implemented, exactly who it would apply to and when they’d be required to comply by.”

For providers that have been teetering the line between making sure they can safely provide care to patients while also not fully mandating vaccines for their employees, the move by the Biden administration is a cause for some relief.

“I think it does provide some relief for those providers who were considering mandates of their own or were looking at states to move forward with one,” Wolfe said. “But, again, we have to keep in mind that there’s still a lot of information we are expecting to see from CMS as we move forward with this.”

The news is also welcome for those providers in states that have already mandated vaccines for home health care workers, like in New York state.

“Without a major national mandate like this, providers had the threat of losing their employees to other industries where vaccinations will not be mandated,” Emina Poricanin, managing attorney of Poricanin Law, told HHCN. “But if other large private employers will require a vaccine also, then the employees’ options are somewhat limited and those home care aides may feel more pressure to become vaccinated and stay employed with their New York home care provider that is requiring the vaccine.”

The penalties for non-compliance are also not yet completely clear, outside of a $14,000 penalty that would likely be enforced by the DOL’s Occupational Safety and Health Administration (OSHA).

The effect on home care providers

An additional part of the announcement was a provision that would require all private-sector businesses with more than 100 employees to require that their workforces be fully vaccinated, or otherwise be subjected to weekly testing. Those employers will also be required to give paid time off to employees to get vaccinated.

A recent study from Caring.com of 2,000 caregivers found that just 50% of them were fully vaccinated. Of those that weren’t, 27% had at least started the vaccination process, while the remaining 23% had not.

The survey also found that vaccine hesitancy was not actually curbed after a full approval from the U.S. Food and Drug Administration (FDA).

While private-pay home-based care providers are not yet subject to mandated vaccine requirements on a federal level, it will still affect many of them considerably.

The first reason is that many of these providers also care for patients through Medicaid, which is obviously a federal payer source. The second is the aforementioned 100-plus-employee provision, with the caveat being that unvaccinated workers can still be tested weekly in lieu of getting the vaccine.

One question for these providers is whether part-time employees will be counted — this could make or break whether a provider is considered to have more or less than 100 employees.

Just 14% of direct care workers in the home-based care field work 40 or more hours per week, with many opting for more flexible schedules due to non-economic obligations like child care, according to a recent report from advocacy group PHI.

Additionally, it’s unclear for franchise organizations whether each franchise will be considered its own entity or if the network will be viewed as one.

Some home care operators in places like Los Angeles County have already been mandated by the regulators to comply with mandates, including 24 Hour Home Care.

“We’re in this testing phase right now,” Ryan Iwamoto, the president and co-founder of 24 Hour Home Care, recently told HHCN. “We’re probably at about 50% vaccinated, in terms of caregivers who’ve told us they’ve gotten the shot. With the other 50%, we’re wondering, ‘Are they on the fence? Or are they just going to leave the industry?’ It’s all a bit unknown. We hope most will get [the vaccine], but you never know. And I think that’s what we’re sort of facing right now.”

Other providers still remain in limbo, however. With vaccine hesitancy high and looming federal and state mandates still sometimes unclear, they are in a precarious position.

A sigh of relief

Nursing home operators were among the loudest supporters of a vaccine mandate from the federal government that stretched across the continuum of care. CMS announced on Aug. 19 that all nursing home staff must be vaccinated against the COVID-19 virus, or risk losing Medicare or Medicaid reimbursement.

“It needs to be broadcast to all health care settings, because it will decimate the industry as a whole,” Carespring CEO Chris Chirumbolo said during the Skilled Nursing News Rethink conference in Chicago.

Essentially, nursing home executives feared that a mandate in one setting would simply cause workers to migrate into less-regulated corners of the health care world.

“The problem is singling us out,” Ignite Medical Resorts CEO Tim Fields said at Rethink. “I think that you’ll force some people who just don’t want to get [the vaccine] to go to home health, hospice, hospitals, assisted living and other settings.”

The post ‘For Many Providers, It’s Welcome News’: Breaking Down the White House Vaccine Mandate appeared first on Home Health Care News.