Chevron Deference Derailed

by Kristin Rowan | Dec 26, 2024

by Kristin Rowan, Editor

Chevron Deference

“A government agency must conform to any clear legislative statements when interpreting and applying a law, but courts will give the agency deference in ambiguous situations as long as its interpretation is reasonable.”

This statement followed the unanimous (minus the three who did not take part in the decision) U.S. Supreme Court decision in the Chevron U.S.A., Inc. v. National Resources Defense Council. The case is known for establishing the extent to which a federal court should defer to a government agency’s interpretation of an ambiguous statement when constructing statutes.

Breaking Down Chevron Deference

For those of you who don’t have a law degree, here’s what that means:

When a statutory term (required by law) is not explicitly defined and explained by Congress, there is room for interpretation
When a government agency interprets that statutory term, the interpretation may come under question
As long as the interpretation is not arbitrary (random), capricious (impulsive or unpredictable), or contrary to the statute (opposite the intent when put into practice), federal courts should give more weight to the government agency’s interpretation than to any other interpretation

Implications

At the time, the Supreme Court argued that if Congress leaves a term open to interpretation, it is either stated openness to interpretation, or an implied openness to interpretation. If a statute is implicity open, the intent of Congress is to allow a government agency to create provisions and regulations from that statute as they see fit.

No one foresaw the impact this ruling would have on commerce and regulation in the U.S. To date, the Chevron Doctrine has been cited nearly 18,000 times in federal court decisions. The application of a statute based on agency interpretation could no longer be questioned or changed by judicial review.

Chevron Deference in Home Health

Since the advent of the PDGM model, CMS has calculated payment rates based on its interpretation of budget neutrality. The National Association for Home Care and Hospice has disputed the validity of both the interpretation of budget neutrality and the formulas used to calculate it.

Last year’s 2024 CMS Proposed Rule cut payment rates even further with a 2.890% Budget Neutrality permanent payment rate adjustment and a temporary rate adjustment to account for alleged overpayments from 2020-2022.

The lawsuit filed against CMS in response to the 2024 Final Rule was dismissed. NAHC began pursuing an administrative review with CMS. However, CMS has already stated that their final position is that budget neutrality has been calculated within the law.

NAHC Comment: 2023 CMS Rule

“That proposal also fails logically in that it puts care access in severe jeopardy in applying a budget neutrality reconciliation methodology that takes PDGM-induced behavior changes to assess what otherwise would have been expended by Medicare in the absence of PDGM. In doing so, CMS fully fails to meet its obligation to ensure that the transition to a new payment model is budget neutral.”

NAHC Comment Source

Chevron Deference Repealed

In a landmark ruling on Friday, June 28. 2024, the Supreme Court removed the power of federal agencies to interpret laws and ruled that the courts should rely on their own intrepretation of ambiguous laws. Justice Elena Kagan, who dissented the ruling, predicts this change “will cause a massive shock to the legal system.”

Chief Justice John Roberts explained in his opinion that the Chevron Deference is inconsistent with the Administrative Procedure Act (APA). The APA is a federal law which contains instructions for courts to review actions by federal agencies. According to Roberts, the APA directs courts to decide legal questions using their own judgment. Therefore, he noted, agency interpretations of statutes are not entitled to deference. “…it remains the responsibility of the court to decide whether the law means what the agency says,” concluded Roberts.

NAHC to Refile Lawsuit after Chevron Deference Repeal

2024 Final Rule

In April, 2024, the lawsuit filed against CMS regarding the methodology for calculating budget neutrality was dismissed. Now, NAHC can refile the lawsuit and force CMS to justify its decision to enact repeated reimbursement cuts for home health.

In an interview on Wednesday, Bill Dombi told The Rowan Report, “This improves the chances of success for our lawsuit. CMS is going to have to support their regulatory interpretations going forward. Congress is going to have to offer more detail in its legislative language, leaving less to being open to interpretation.” Regarding the PDGM lawsuit, CMS argued that the law was clear and the agency’s interpretation was valid. The overturning of Chevron Deference allows the possibility of arguing that CMS’s interpretation of the law is flawed.

80/20 Rule

Dombi also explained that the Ensuring Access to Medicaid Services rule, also known as the 80/20 rule, was “drawn out of a whole cloth.” Previously, there were limited avenues available to challenge this rule. The repeal of Chevron Deference significantly improves the ability to challenge the 80/20 rule. The argument now, Dombi told The Rowan Report, is “Does CMS even have the authority to do this?”

More to Come

The Rowan Report anticipates more news coming out of Washington D.C. and the NAHC office regarding the 2024 pay cuts and the 80/20 rule. We will provide ongoing updates and information as it becomes available.

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Kristin Rowan has been working at Healthcare at Home: The Rowan Report since 2008. She has a master’s degree in business administration and marketing and runs Girard Marketing Group, a multi-faceted boutique marketing firm specializing in event planning, sales, and marketing strategy. She has recently taken on the role of Editor of The Rowan Report and will add her voice to current Home Care topics as well as marketing tips for home care agencies. Connect with Kristin directly kristin@girardmarketinggroup.com or www.girardmarketinggroup.com

©2024 by The Rowan Report, Peoria, AZ. All rights reserved. This article originally appeared in Healthcare at Home: The Rowan Report. One copy may be printed for personal use: further reproduction by permission only. editor@therowanreport.com

Biden Budget Impacts Medicare and Medicaid

by Kristin Rowan | Dec 25, 2024

From the NAHC Newsdesk,

March 12, 2024

On Monday, March 11th, President Biden released a $7.26 trillion proposed budget for fiscal year (FY) 2025, which begins October 1st, 2024. While the White House budget is simply a request and Congress has final say on government spending, it does provide a window into the president’s priorities and where his administration wants to direct its efforts going forward. Lawmakers have not yet finalized spending for the current fiscal year — which runs through Sept. 30 — and will need to begin negotiating funding legislation for FY2025 simultaneously with ongoing debates over current fiscal year appropriations.

The FY2025 budget requests more than $130.7 billion to fund the Department of Health and Human Services (HHS). In addition to this $130.7 billion of requested appropriations, HHS also projects spending over $1.7 trillion on mandatory programs, such as Medicare and Medicaid, that are not subject to the annual appropriations process. Notably, the budget also would extend the Medicare sequester cuts by one year until 2032 (they were previously extended through 2031 by The Infrastructure Investment and Jobs Act of 2021), which would provide savings of around $7.6 billion. The budget also proposes to increase contributions to the Medicare trust fund and extend its projected solvency by increasing taxes on earned and unearned income for those individuals with annual income over $400,000 from 3.8% to 5%.

Over the coming weeks members of the Executive Branch will be testifying before key committees in the House and Senate to provide additional detail around the recommendations put forth in the budget documents. As additional relevant detail is made available, it will be covered in “NAHC Report.”

Provisions of interest in the Budget include:

Medicare

Multiple Provider Types

Home Health

- Create a Permanent Medicare Home Health Value-Based Purchasing Program:
  The Home Health Value-Based Purchasing Model, which the CMS Innovation Center launched in 2016 and expanded nationwide in 2022, successfully improved the quality of home healthcare at lower cost without evidence of adverse risks. This proposal converts the expanded model into a permanent Medicare program, similar to value-based purchasing programs already in place for other Medicare providers. [Budget Neutral]

Hospice

- The Budget proposes to implement a new “value-based purchasing” (VBP) program for hospices (and many other provider sectors that do not already have a VBP program) starting in CY2027. No further details are provided about this VBP-for-hospice program, or the other sectors’ VBP programs, other than that they would be budget-neutral, and that CMS would consider granting “hardship exemptions” to certain providers. NAHC reminds members that just last week, CMMI decided to terminate the Value-Based Insurance Design (VBID) hospice “carve-in” demonstration at the end of CY2024 (the demo had been set to run through CY2030). Over the years, various policy stakeholders have floated different Medicare hospice benefit (MHB) payment reforms, and 2010’s Affordable Care Act legislation called on CMS to pilot test a VBP program for hospices, which it has not done to-date.

Medicaid

Mirroring previous year proposals, the budget includes $150 billion over 10 years to improve and expand Medicaid home and community-based services (HCBS).

- The budget also proposes to require that states report on the national Medicaid Adult and HCBS Quality Reporting measures. Notably, this budget proposal seeks legislative authority to mandate this reporting while CMS included a mandate for states to submit HCBS Quality Reporting in their 2023 proposed Medicaid Access rule.
- The Budget proposes to require a Medical Loss Ratio (MLR) for Medicaid and CHIP managed care organizations, with required remittances if plans do not meet the minimum standard. Current law allows, but does not require, states to impose a MLR on their health plans.
- Proposes to authorize CMS to negotiate supplemental drug rebates on behalf of interested States in order to leverage savings from pooled purchasing power. (5.18 billion savings) As discussed in the State of the Union address, President Biden’s budget includes a proposal to create a Federal option that provides health care coverage to low-income individuals in States that have not expanded Medicaid. As a corollary to this proposal, the budget includes incentives for states to retain existing Medicaid expansions not default to the Federal Option. The budget contains several proposals to strengthen and streamline services for dual eligible individuals including:
  - Aligning Medicare Savings Programs and Part D Low income Subsidy Eligibility Methodologies to make it easier for states and individuals to determine eligibility and enroll in both.
  - Extending the Qualified Medicare Beneficiary (QMB) certification period. Currently states can limit QMB eligibility to periods less than one year, whereas this proposal would establish a 12-month eligibility certification. Provide CMS with the authority to unify appeals processes for Medicare and Medicaid review for individuals enrolled in integrated managed care plans by waiving amount-in-controversy minimums and allowing benefits to continue while an appeal is pending.
  - Allow retroactive coverage of Medicare Part B premiums for QMB applicants.
- A proposal to allow CMS to issue partial deferrals and disallowances that target issues of noncompliance in managed care environments and to provide CMS with additional managed care enforcement options.

Department of Labor/Healthcare Workforce

- The President’s Budget proposes to establish a national, comprehensive paid family and medical leave program administered by the Social Security Administration to ensure all workers can take up to 12 weeks of leave to care for a seriously ill loved one. Further, the President continues to call on Congress to require employers to provide at least seven paid sick days per year to all workers, and to ensure that employers cannot penalize workers for taking time off to address the health needs of a family member.
- The Budget expands workforce training along with creating career pathways to in-demand jobs through an $8 billion mandatory Career Training Fund.
- Broadens Access to Registered Apprenticeships: The Budget increases support for Registered Apprenticeships, a training tool for future workforces in a number of in-demand industries, including health care.
  - The proposal seeks to invest $70 million in the Strengthening Community college training program, which builds community colleges’ capacity to design and deliver high-quality, evidence-based training programs.
  - Invests in Caregivers Support Programs through the VA. Recognizing the critical role family caregivers play in supporting the health and wellness of veterans, the Budget provides critical funding for the Program of General Caregivers Support Services. The Budget also specifically provides $2.9 billion for the Program of Comprehensive Assistance for Family Caregivers, which includes stipend payments and support services to help empower family caregivers of eligible veterans.
  - Nursing Workforce Development — The FY 2025 budget includes $320 million for Nursing Workforce Programs, an increase of $20 million above FY 2023. The budget includes an additional $10 million to address national nursing needs, train more nurses, and strengthen workforce capacity in education, practice, and retention. HRSA will support an increase in the number of nurses trained to provide prenatal care through investments in perinatal maternal healthcare in rural and underserved community settings to increase access and improve the quality of patient care. The investment also increases the number of nurse faculty and clinical preceptors which are critical to expanding nurse training and producing more new nurses.
  - The budget also includes an increase of $10 million for Advanced Nursing Education to bolster the maternal and perinatal workforce by supporting maternal health nurses available to provide specialized care. The program will continue to increase the number of qualified nurses in the primary care workforce, including nurse practitioners, clinical nurse specialists, and Sexual Assault Nurse Examiners.
  - Health Care Workforce Innovation Program — The FY 2025 budget invests $10 million for a new program to jumpstart strategies to grow the healthcare workforce and address healthcare workforce shortages across disciplines such as physicians, nursing, and behavioral health. This new program would invest in innovative approaches to accelerate the transformation of healthcare workforce training to support a modern, robust, and diverse workforce training pipeline.
- HRSA supports the health workforce through health professions scholarships and loan repayments in return for service in underserved and rural communities. The FY 2025 budget requests $16.3 billion for HRSA, which is $2.0 billion above FY 2023. This total includes $8.3 billion in discretionary budget authority and $8.0 billion in mandatory funding and other sources.

Program Integrity and Oversight Efforts

The Budget includes a proposal to “Increase Private Equity and Real Estate Investment Trust Ownership Transparency in Long-Term Care Facilities.” This proposal continues the Administration’s aggressive oversight of Wall Street activity in health care and would require skilled nursing facilities with either of these ownership types, whether direct or indirect, to provide additional financial disclosures above and beyond other provider types.
The budget also includes a proposal that would modify the requirement that owners with a five percent or greater direct or indirect ownership must be reported on the provider/supplier’s enrollment application, to require owners with any percentage-level of interest be reported.
HHS states that “top priorities that would require additional funding for CMS include:

Increasing Medicare fee-for-service medical review, including the possible adoption of artificial intelligence (AI) and natural language processing technologies;
Addressing vulnerabilities identified by the Vulnerability Collaboration Council, report recommendations from the Government Accountability Office (GAO) and HHS-OIG, and emerging issues;
Increasing nursing home enforcement (e.g., ownership reporting validation, reviewing Part D data of beneficiaries who reside in nursing facilities, and supporting DOJ in cases brought under the False Claims Act related to quality of care) and enforcement of home and community-based services (HCBS); and
Quickly addressing fraud scams, as needed, above current levels.”

HHS states that OIG’s “key focus areas” will include managed care, nursing homes, and home and community-based services.

Health Equity

Surveys and Certifications (Medicare and Medicaid)

Generally and across provider types, CMS indicates in many places in the budget documents that they are struggling with survey backlogs, primarily amongst state survey agencies (SSAs), and mostly as a result of both lingering COVID impacts and multi-year stagnant funding from Congress for Survey & Certification activities. CMS states that “With years of flat funding, the Survey and Certification program can no longer meet statutory frequency requirements or adequately guarantee the safety and quality of care for patients receiving care in CMS certified facilities.”
They also write that “CMS forecasts an increased number of complaint surveys pending and overdue for investigation across all provider types, including some immediate jeopardy complaints. The concern with the backlog is further confounded by the aforementioned increasing number of complaints being reported as well as surveyors finding more serious quality of care issues when conducting onsite surveys. These findings result in longer surveys and possible onsite revisit surveys. They also indicate a general worsening in the quality of services being provided to patients and residents.”
Specifically for the hospice program, CMS states that “CMS did not meet the FY 2020 – FY 2022 target of 98% [of hospices surveyed within the last 36-months, as required by law] due to the COVID-19 Public Health Emergency (PHE) and reprioritization of survey activities based on guidance published throughout the PHE.”
“While Accrediting Organizations have eliminated backlogs resultant from the PHE, SAs still face challenges. As SAs reduce the backlog, we anticipate meeting the target goal of hospice facilities surveyed within the required 36 months in the upcoming years.” CMS indicates that for FY2022, the most recent year with complete data, 87.1 percent of hospices were surveyed in the last 36 months.

“This is important data for NAHC’s advocacy around CMS’ flawed Special Focus Program (SFP) design and the CMS’ plan to launch the program at the end of 2024. Given that hospice surveys are such a critical component of the SFP algorithm, it is important that CMS use accurate and up-to-date survey data; however, the budget language here seems to indicate that CMS is not caught up on the hospice survey backlog and may not be able to ensure that all hospices have indeed been surveyed in the last 36 months for at the near future.”

NAHC Position

Biden Budget Impacts Medicare “This is important data for NAHC’s advocacy around CMS’ flawed Special Focus Program (SFP) design and the CMS’ plan to launch the program at the end of 2024. Given that hospice surveys are such a critical component of the SFP algorithm, it is important that CMS use accurate and up-to-date survey data; however, the budget language here seems to indicate that CMS is not caught up on the hospice survey backlog and may not be able to ensure that all hospices have indeed been surveyed in the last 36 months for at the near future.”

The budget requests $492 million for Survey and Certification, an increase of $85 million or 21 percent above FY 2023, to fund Medicare and Medicaid provider survey and certification activities. If funded at this level, CMS claims it would have sufficient resources to ensure states:

Complete approximately 85% of the recertification surveys for statutory facilities (up from the current 65% via FY2024 levels), survey projected complaints in all facility types at an Actual Harm, Immediate Jeopardy (IJ), and Non-IJ High levels, address a portion of the current complaint backlog, and a proportional recertification survey frequency rate for non-statutory facilities with a focus on those facility types with higher beneficiary risks.
CMS also states that at this level, Hospice and ESRD facilities will have funding to perform initial surveys on new providers wanting to enter the program to gain Medicare and/or Medicaid certification

Additionally, the budget proposes, effective in FY 2026, to shift the funding mechanism for nursing home surveys from discretionary to mandatory appropriation and to increase the amounts to a level necessary to achieve a 100 percent nursing home survey frequency, adjusted annually for inflation.

Administration for Community Living

Funding for aging and disability community-based organizations

The proposal includes $2.7 billion for ACL, which is an increase of $70 million on paper above FY 2023 amounts, but it effectively represents an approximately $112 million increase due to eliminating $42 million of earmarks in the accounting tables.
ACL requests an additional $10 million to expand their Direct Care Workforce Strategies Center and fund capacity-building grants to states to support building partnerships among state Medicaid, aging, disability, and workforce agencies; coordinating and leveraging programs and funding streams; and developing and testing strategies to attract, train and retain direct care professionals.
ACL also requests $1.1 billion for nutrition services, which is the largest part of the Older Americans Act and would be an increase of $83 million above FY 2023.

Health Resources and Services Administration

HRSA — $320M line item for Nursing Workforce Development (pg. 25):

Nursing Workforce Development &mndash; The FY 2025 budget includes $320 million for Nursing Workforce Programs, an increase of $20 million above FY 2023. The budget includes an additional $10 million to address national nursing needs, train more nurses, and strengthen workforce capacity in education, practice, and retention. HRSA will support an increase in the number of nurses trained to provide prenatal care through investments in perinatal maternal healthcare in rural and underserved community settings to increase access and improve the quality of patient care. The investment also increases the number of nurse faculty and clinical preceptors which are critical to expanding nurse training and producing more new nurses.
The budget also includes an increase of $10 million for Advanced Nursing Education to bolster the maternal and perinatal workforce by supporting maternal health nurses available to provide specialized care. The program will continue to increase the number of qualified nurses in the primary care workforce, including nurse practitioners, clinical nurse specialists, and Sexual Assault Nurse Examiners. (pg. 30)

HRSA — $10m line item for a Health Care Workforce Innovation Program (pg. 25)

Health Care Workforce Innovation Program – The FY 2025 budget invests $10 million for a new program to jumpstart strategies to grow the healthcare workforce and address healthcare workforce shortages across disciplines such as physicians, nursing, and behavioral health. This new program would invest in innovative approaches to accelerate the transformation of healthcare workforce training to support a modern, robust, and diverse workforce training pipeline.(pg. 30)

HRSA — $51m line item for Medical Student Education (pg. 25)

HRSA — “HRSA supports the health workforce through health professions scholarships and loan repayments in return for service in underserved and rural communities. The FY 2025 budget requests $16.3 billion for HRSA, which is $2.0 billion above FY 2023. This total includes $8.3 billion in discretionary budget authority and $8.0 billion in mandatory funding and other sources. (pg. 27)

Home HealthCare Patient Dies in Care: Aide Arrested

by Kristin Rowan | Dec 23, 2024

by Kristin Rowan, Editor

Elderly Patient Needs 24-hour Care

In Polk County, FL, an 86-year old man, identified only as Mr. Anderson, was hopsitalized and diagnosed with congestive heart failure. In addition to receiving care from Good Shepherd Hospice, his family hired round-the-clock care through Assisting Hands. The home health aides were caring for Mr. Anderson in 12-hour shifts.

Night Shift

Beatrice Taylor arrived for her night shift at 9 p.m. She noted that Mr. Anderson and his wife were already in bed, but not sleeping. Shortly after the day aide left, Taylor fell asleep on the couch in the living room of the patient’s home. Company policy states she was responsible for the patient’s care and should not have been sleeping.

An Avoidable Tragedy

Taylor was awakened by a “thump” coming from the bedroom. She entered the bedroom to investigate and found Mr. Anderson lying on his side, on the floor, with his head wedged between the nightstand and the bed. Taylor told investigators that she tried to help him back into the bed. He told her not to touch him, so she left him there and went back to sleep on the couch. She did not call 911, as was the policy of Assisting Hands in the event of an emergency. Nor did she call her agency or anyone else to assist.

Four Hours Later

Taylor woke up somewhere between 3:45 a.m. and 4:53 a.m. that morning. At some point, she called her parents and had a 36 minute conversation. During that conversation, she decided to check on the patient and found him still on the floor, but now unresponsive. It was her parents who suggested she call 911.

Contrary to both her parents’ urging and her employer’s policy, Taylor still did not call 911. Instead, she called Assisting Hands and left a message through the company portal. Taylor finally called 911 at 5:37 a.m., more than four and a half hours after Mr. Anderson fell.

The implanted pacemaker found during autopsy showed that Mr. Anderson was still allive at 1:oo a.m. when Taylor initially found him. The autopsy also concluded that he would have survived if Taylor had called 911 right away. His official cause of death was positional asphyxia with pre-existing health conditions listed as contributory causes.

Not actual image from story

Company Policies Broken

During the course of their investigation, detectives reviewed the Assisting Hands employee policies. That investigation uncovered several policies that Taylor violated:

If a patient falls, home aides are required to seek help which may entail calling 9-1-1. Home aides must notify the company as soon as the patient is safe
Home aides are not permitted to sleep during their assigned shift unless it is a “live in” shift
Home aides are required to submit care notes using the company portal throughout their shift to ensure assigned services are being followed appropriately.

The 911 call that Taylor placed at 5:37 a.m. should have been placed at 1:00 a.m.
Assisting Hands confirmed to detectives that this was not a “live in” shift
No information was provided as to whether Taylor submitted care notes during the shift.

Arrested Development

Taylor worked for Assisting Hands for eight months, but did not show up for her shift following the incident with Mr. Anderson. Assisting Hands has since terminated her employment. She was a licensed home health aide, but does not have a medical license, nor is she a nurse.

Taylor was arrested by detectives and made several statements about her innocence. She insisted she had done nothing wrong saying she, “didn’t kill that man.” A paramedic who responded to her 911 call overheard Taylor on the phone say, “he was old anyway so what does it matter.” Taylor remains in custody at the Polk County Jail and is being held without bond.

Polk County Sheriff

“The complete disregard for Mr. Anderson’s life by the person who was employed by his family is completely outrageous, and egregious. I believe someone who was not even being paid to look after this elderly man would have immediately dialed 9-1-1 under these circumstances. Her behavior and attitude are simply deplorable. Mr. Anderson’s family members are in our prayers.”

Grady Judd

Sheriff, Polk County Sheriff's Office

Risk Fall

In 2021, more than 38,000 older adults died from falls. This is the leading cause of injury death for adults aged 65 and older. The death rate increased 41% between 2012 and 2021. You can read more about the risk of falling and what one company is doing to help prevent falls in our accompanying article this week, an interview with Dr. Ann Wells of InnovAge.

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Elara Caring Found at Fault

by Kristin Rowan | Dec 20, 2024

by Kristin Rowan, Editor

Home health agency failed to protect Joyce Grayson

History

We’ve been following the story of Joyce Grayson since her death in October of 2023. The news was first published in The Rowan Report here on November 8th, 2023.On April 14th, we reported on the pending Senate Bill in Connecticut that would require home health agencies to provide additional information and safety precautions prior to a home visit. The safety of solo workers is now even more important to home health and hospice agencies with the most recent update.

Today

May 1, 2024, the U.S. Department of Labor (DOL) posted a news release on their investigation into the death of Joyce Grayson, a home health nurse in Connecticut. According to the Department of Labor, OSHA has determined that Elara Caring exposed their employees to workplace violence from patients who were known to pose a risk to others. Jordan Health Care Inc. and New England Home Care Inc., both doing business as Elara Caring, have been cited for willful violation of the agency’s general duty clause. OSHA cited them for not developing and implementing safety measures to protect employees from workplace violence. They also cited the agency for failure to report work-related injury and illness records within four business hours.

Repercussions

OSHA has proposed more than $163,000 in penalties against Elara Caring. Elara Caring has 15 days from receipt of the citations to respond, request a hearing, or contest the findings.

“Elara Caring failed its legal duty to protect employees from workplace injury by not having effective measures in place to protect employees against a known hazard and it cost a worker her life,” said OSHA Area Director Charles D. McGrevy in Hartford, Connecticut. “For its employees’ well-being, Elara must develop, implement and maintain required safeguards such as a comprehensive workplace violence prevention program. Workplace safety is not a privilege; it is every worker’s right.”

OSHA found that Elara Caring could have reduced the potential for workplace violence by looking at the root causes of violent incidents and “near misses.” They could also have provided clinicians with background information on patients prior to a home visit. Other recommendations from OSHA include providing emergency panic alert buttons and using safety escorts for visits with high-risk patients.

Future Recommendations

The DOL states that employers should have a comprehensive workplace violence program. This program should include both management and employee involvement. Further, the DOL says this plan should have a written program with a committee. Elements of a workplace violence program include:

Analysis of a home upon new patient admission
Hazard prevention and control
Training and Education
Resources for Impacted Employees
Recordkeeping
Employee Feedback

Elara Caring at Fault Stop Workplace Violence

Implications

If Elara Caring is fined for failure to keep their clinicians safe as a result of the investigation into Joyce Grayson’s murder, state and national level regulations are sure to follow. However, even if the laws in your area don’t change, investing now in workplace safety for your clinicians could save you from similar allegations and fines. As we mentioned in last week’s article about the Senate Bill, we have been in touch with several emergency alert companies and will be providing product reviews in the next few weeks. Start a workforce safety committee, develop a written plan for mitigating dangerous situations, and issue emergency response systems to all of your clinicians before it is your agency under investigation. More importantly, take these steps before your team loses one of its own to workplace violence.

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©2024 by The Rowan Report, Peoria, AZ. All rights reserved. This article originally appeared in Healthcare at Home: The Rowan Report. One copy may be printed for personal use: further reproduction by permission only. editor@therowanreport.com

HHAeXchange: An interview with Paul Joiner

by Kristin Rowan | Dec 18, 2024

What does future growth look like for HHAeXchange?

Joiner:

We will probably continue to acquire companies. Maybe not multiple companies in a matter of weeks, but we will continue when the opportunity arises. The spirit behind our strategy is to focus on what our customers need. We are in a position in the market to have a big responsibility to be good stewards, help our customers, caregivers, and agencies, and improve the quality of life for patients.

HHAeXchange is focused on getting the right technology into the hands of caregivers. We’ve already done EVV and point-of-care well. Can we make a difference now in how they are onboarded and scheduled? Can we make a difference in billing and how they’re getting paid? That requires acquisitions and investing organically.

RR:

Any final remarks on what the future holds for HHAeXchange?

Joiner:

Part of our vision board is building a community of caregivers through technology. The good agencies are trying to figure out how to think as much about the caregiver as they do for the people receiving care. Turnover and training is so hard, so we need to invest in our caregivers.

We also need to be a better supplier of data to arm agencies and health plans with the data they need so they can have useful discussion around the date and how they’re supporting caregivers. I’m sad sometimes because agencies don’t get enough financial support for their effort. The industry can be doing more for their caregivers.

We take our responsibility to do the right thing seriously. Because of this, we are investing in the space and we want more options so we can be better for the industry. Our intention is to make a difference.

RR:

Thank you, Paul for talking with us today.

About HHAeXchange

Founded in 2008, HHAeXchange is the leading technology platform for homecare and self-direction program management. Developed specifically for Medicaid home and community-based services (HCBS), HHAeXchange connects state agencies, managed care organizations, providers, and caregivers through its intuitive web-based platform, enabling unparalleled communication, transparency, efficiency, and compliance. For more information, visit hhaexchange.com or follow the company on Twitter, LinkedIn and Facebook.

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CMS 80/20 Finalized Rule

by Kristin Rowan | Dec 17, 2024

by Kristin Rowan, Editor

The Centers for Medicare and Medicaid Services (CMS) has finalized the “Ensuring Access to Medicaid Services” rule, more commonly known as the 80/20 rule. The 80/20 finalized rule requires at least 80% of Medicaid payments for home care services goes to caregiver wages. No more than 20% can be spent on administrative or other overhead costs. The White House, citing a study by The Commonwealth Fund, says that higher wages for caregivers will reduce turnover. Facing massive workforce shortages, home health, hospice, and supportive care at home agencies have been struggling to recruit and retain an adequate number of caregivers. The higher wage will also increase the quality of care, according to the study.

Prior to the 80/20 rule, there was no law or rule requiring home care agencies to report how they were spending money from federal medical payments. The rule includes requirements for states to create advisory groups to consult on rates and compensation. This changes the current Medical Care Advisory Committee regulations by increasing the percent of beneficiaries on the committee from 10% to 25% over the next two year. The Home Care Association of America (HCAOA) and the National Association for Home Care & Hospice (NAHC) argued that the rule adds administrative requirements to home care agencies while simultaneously reducing the resources available to fund them. NAHC President Bill Dombi said, “We all agree that more needs to be done to support the direct care workforce; however, this policy will make things worse, not better.” NAHC suggests the policy will force some agencies to close and others will leave the Medicaid program altogether, causing patients to have even more problems accessing care.

Exceptions to the Rule

From the text of the final rule, CMS acknowledges additional comments that the minimum direct payment to caregivers in this rule will create hardships for some agencies. Across the country, there are substantial differences among waiver programs for HCBS that are not accounted for in the rule. There is some flexibility built into the rule to account for these factors, according to CMS. Some of the flexibilities include:

Excluding some costs from the calculation
Including clinical supervisors in the calculation
Allowing states to set a different minimum for small providers
Allowing states to develop their own criteria to qualify as a small provider
Allowing states to develop criteria to exempt some providers from the rule

Exemption from the minimum payment rule for all Indian Health Service and Tribal health programs

The final rule also changes the timeline for complying with the rule from four years after the date of publication to six.

Objections to the Rule

Other comments included the need to address various reasons for the workforce shortage. In addition to low wages, commenters cited the social valuation of direct care work, lack of governmental support for some workforce pipelines, and immigration policies as deterrents to recruitment. One suggested that CMS start looking at creative strategies for developing an atypical workforce.

There were several submitted comments stating the either HHS or CMS or both does not have the authority under the Affordable Care Act to make specific requirements for minimum payments, but only to ensure that each State is assessing payment regulations and ensuring payments are economical, efficient, and ensure quality of care. A specific section of the Affordable Care Act, section 2402(a)(1) requires the Secretary of the Department of Health and Human Services (HHS) to ensure states implement service systems to allocate resources. The provision does not give HHS the authority to dictate the terms of those service systems, only to ensure the states develop those systems. Not surprisingly, CMS disagreed with those comments.

Many people questioned the 80% as being unrealistic, too high, and not based on quality data. CMS cited data from several states, who have pass-through requirements of 80-95% for all rate increases. This is not a minimum payment from all Medicaid payments, only a requirement for a minimum pass-through to direct care workers of increases in rates. Two states, Minnesota and Illinois, currently have minimum payment requirements set at 72% and 77%, respectively. CMS used these two states as justification for the 80% rule, acknowledging that it is higher than both states while also acknowledging that they did not perform a state-by-state study of the impact the 80% rule will have. CMS states the rate was set higher than those states to “encourage further steps towards improving compensation for workers.” CMS believes that requiring HCB agencies to pay their direct care workers a higher percentage of Medicaid rates than any state currently does will somehow make those agencies want to voluntarily pay even more.

The 80/20 Rule and Technology

Technological advances in telehealth, remote patient monitoring, revenue cycle management, scheduling, employee benefits, assistive technology, EVVs, EMRs, CRMs, and other software solutions can and will lower overhead costs and increase efficiency in your agency. Paperwork automation can reduce the time spent on documentation by a significant percentage. Revenue Cycle Management software can reduce claim denials and decrease reimbursement payment cycles so you can get your money faster. They can also reduce the number of unpaid claims. Employee benefit and training software can reduce responsibilities for HR teams, lessen the requirements for clinical supervisors, and cut training time in half, getting your newly recruited caregivers out in the field faster. Scheduling and onboarding software can increase your intake capabilities. The advances in generative AI allow you to create robust reports almost instantly so you can see your agency’s strengths and weaknesses and create plans for improvement.

Some of these costs will be excluded from the calculations for the 80% rule. Now is the time to invest in technology for your agency. Not only will your agency be more efficient and more effective, but you will be able to care for more patients with the same staff you have now, and the software solutions are as close to cost-neutral as they will ever be. We have a list of technology solutions that we’ve recently discovered and will be writing about in the next few weeks. If you are in immediate need of a software solution, contact us directly for a consultation.

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Is Medicare Advantage Killing Seniors?

by Tim Rowan | Dec 15, 2024

by Tim Rowan, Editor Emeritus

Is Medicare Advantage Killing Us?

Dr. Steve Landers has long been eloquent in his speaking and writing about the importance of Home Health over the years. Though I was already impressed, I gained a new level of respect this week. Simultaneously with his debut as CEO of the new Alliance, Dr. Landers released an article about a recent study on the impact of Medicare Advantage on Medicare beneficiaries.

It is an article that everyone in our healthcare sector should read.

In “Home Health Cuts and Barriers are Life and Death Issues for Medicare Beneficiaries,” Dr. Landers points readers toward a study conducted by Dr. Elan Gada of UnitedHealthcare’s Optum Group. The results are disturbing. That the findings were released by a Medicare Advantage company is surprising.

Yes, Virginia, Home Healthcare Really Does Save Lives

Landers cited the study’s primary finding. “Medicare Advantage beneficiaries in their plan who did not receive needed home health care after hospitalization were 42% more likely to die in the 30 days following a hospital stay than those who received the prescribed care.” If a drug proved to be as effective as post-discharge home healthcare in saving lives, Landers wrote, “it would dominate the news, restricting access would be considered immoral, and health officials would be pushing its adoption.”

Medicare Advantage Enrollees Go Without

There are a number of reasons a hospital discharged patient might not receive home healthcare, including system issues and patient refusal. However, Dr. Gada’s study also discovered that MA customers go without post-discharge home health at a higher rate than traditional Medicare beneficiaries. Traditional Medicare beneficiaries go without in-home care about 25% of the time. Medicare Advantage beneficiaries 38% of the time. Landers notes that this data is a few years old and that the denial rate for MA customers is likely higher today.

Stop the Killing

We know the life-saving impact of post-hospital home healthcare. The question becomes: how does our little corner of the U.S. healthcare system help regulators and payers to know it as well as we do? At this week’s inaugural conference of the National Alliance for Care at Home, at least three education sessions discussed Medicare Advantage. All three offered strategies for negotiating with insurance companies and surviving under their oppressive rate structures and their frequent care denials.

UnitedHealth Group Medicare Advantage Landers

These Are Bandages, Not Cures

In previous opinion pieces, I have quoted revelations in government lawsuits against MA divisions of insurance companies. These prove the program that was originally launched to extend the lifespan of the Medicare Trust Fund actually costs CMS 118 percent of what traditional Medicare costs. At the same time, insurance company reports to shareholders proudly point out that their MA division is their most profitable.

One of last week’s most read stories was the report from UnitedHealth Group on their astounding Q3 growth.

In the Long Run

Learning to cope with MA care denials and below-cost visit payments is fine for those focused on making next month’s payroll. An entirely different tactic is needed for those focused on the care needs of their elderly parents or who are approaching age 65 themselves. The question must be asked, “Why does Medicare Advantage exist?”

Medicare Advantage Lobbyists

AHIP is the insurance company lobby. It put extreme pressure on Congress in 2009 when the Affordable Care Act was being written. That pressure resulted in then-President Obama removing a core plank from his bill. Obama struck the public option healthcare insurance plan in order to win enough votes to get the bill to his desk.

More $ Makes More $

That lobbying effort continues today precisely because MA is so profitable. How does it bring in so much cash? One after another, all of the large insurance companies have been caught padding patient assessments, the very fraud Home Health is so often accused of. Their monthly checks are determined by how much care they predict their covered lives will need, and they exaggerate it. Later, when it comes time to treat these same customers, MA plans deny care that would have been covered by traditional Medicare. They book profits at both ends, and they gladly pay the minimal fines when the practice is exposed.

The Reality of Medicare Advantage Fraud

To make each covered life more profitable, MA plans have begun calling customers to offer “free” nurse visits. These are essentially re-assessments where the MA staffer is rewarded for “finding” additional illnesses. This is not theoretical. My brother was offered a $50 gift certificate to CVS if he would allow his wife’s MA plan representative to drop in and chat with her, to “make sure she was getting all the benefits she was entitled to.”

Dr. Steven Landers: Call for Advocacy

In his article and in his speeches this week, Dr. Landers made it quite clear what must be done. EVERY person whose livelihood depends on the Medicare Trust Fund must make their voice heard. Letters and phone calls to Congress, to the Senate, to CMS, and to the Secretary of Health and Human Services, telling them you do not want to happen to your community what happened in Maine. After years of negative profit margins, in a state where MA adoption is at two-thirds, Andwell Health Partners ceased business in a wide swath of the northern regions of the state. Andwell was the only Home Health provider there.

The combined advocacy strength of NAHC and NHPCO is not enough to tip the scales. Your input is crucial.

Here's How it Works:

Your letter explaining the damage coming from shrinking CMS reimbursement and MA care denials will be opened by a Congressional staffer.
The staffer will read only enough of your letter to see its topic and which side of that topic you are on.
No need to be lengthy or eloquent
Put your topic and your position in your first paragraph
The staffer will add a checkmark in the pro or con side of their Home Health ledger.
The Congressperson, Senator, HHS Secretary will see a one-page summary of the numbers.
When the numbers are small, the summary goes into a file
When the numbers are large, the elected or appointed official will pay attention
In rare cases, you may even get a phone call

UnitedHealth Group Advocacy Medicare Advantage

Dr. Landers, in His Own Words

The article Dr. Landers wrote detailing all of these includes wording suggestions for your message in your letter and/or call. For convenience, I have included one paragraph below,* but I urge you to spend three minutes reading the entire inspiring and frightening piece. In person, he explained all this in an emotional appeal. He said he cannot emphasize enough the importance of universal participation in our new organization’s advocacy effort. Based on what we have learned about post-hospital nursing care in the home, your letters and phone calls are a matter of life and death.

Excerpt

*To save lives and avoid unnecessary suffering, Medicare officials must reverse their plans to cut Traditional Medicare home health payments for 2025 and ensure payments are stable after adjusting for the dramatically increased healthcare labor cost inflation experienced over the past 5 years. Additionally, Medicare officials and lawmakers must study and address the possibility of the disproportionate administrative and financial barriers to home health in Medicare Advantage.

We are fortunate to have leaders in Congress like Senator Debbie Stabenow, Senator Susan Collins, Representative Terri Sewell, and Representative Adrian Smith who are working to champion a comprehensive bi-partisan legislative fix. Our leaders in Washington must act swiftly, before the end of the year, to save lives and avoid further destabilizing home health services for Medicare beneficiaries.

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Tim Rowan is a 30-year home care technology consultant who co-founded and served as Editor and principal writer of this publication for 25 years. He continues to occasionally contribute news and analysis articles under The Rowan Report’s new ownership. He also continues to work part-time as a Home Care recruiting and retention consultant. More information: RowanResources.com
Tim@RowanResources.com

©2024 by The Rowan Report, Peoria, AZ. All rights reserved. This article originally appeared in Healthcare at Home: The Rowan Report.homecaretechreport.com One copy may be printed for personal use: further reproduction by permission only. editor@homecaretechreport.com