HCP’s Initial Budget Recap

The NYS Fiscal Year 2020-2021 Budget, passed last night, includes many proposals impacting the Home Care industry. Given the ongoing and unprecedented COVID-19 crisis this year’s budget process was unlike any other we’ve seen in recent history.

Prior to the COVID crisis there was a substantial budget deficit that had to be dealt with. The COVID crisis has significantly exacerbated the State’s fiscal stability and contributes to seriously uncertain state finances.

Below is a summary of provisions included in the budget. HCP staff continues its analysis of the budget and will continue to report in the coming days.

ELIGIBILITY

Eligibility and Need for Personal Care Services
The budget makes amendments to address how the need for Personal Care Services (PCS) is determined and what level of need must be met. The budget amends Social Services Law (SSL) Section 365-a (2)(e) to provide that the need for Personal Care Services will be determined by a qualified independent physician selected or approved by the Department of Health (DOH).

In addition, SSL Section 365-a (2)(e)(v) is amended to provide that PCS will be available to those assessed as needing at least limited assistance with physical maneuvering with more than two ADLs. Dementia and Alzheimer’s care has a lower threshold for the availability of PCS. The assessment shall be defined and determined by an evidence based validated assessment instrument approved by the DOH.

Independent Panel for Clinical Orders for PCS
The DOH shall also establish a panel no later than 10/1/2022 to provide independent physician orders for PCS and the consumer directed personal assistance program (CDPAP).

Dual Eligibles
Dual Eligibles enrolled in Medicare Duals Plans who do not need long term care services will be required to enroll in an affiliated plan.

Assessments and Reassessments
DOH shall establish or procure an independent assessor to take over from Local Departments of Social Services (LDSS) and Managed Care Organizations (MCO) assessments and reassessments to determine an individual’s needs for PCS and CDPAP services.

Medicaid Long Term Care Look Back Period
Amendments to SSL366 establish a 30-month look back period when determining eligibility for Medicaid Long Term Care services. It also provides for ineligibility of Medicaid when an asset transfer is made.

CDPAP Notification Availability
MLTCs no longer need to provide notice of the availability of CDPAP initially and annually thereafter. Rather, individuals receiving home care will have the opportunity to apply for CDPAP no less than annually.

Evidence Based Assessment Tool
The DOH shall develop and implement an evidence based validated uniform task based assessment tool no later than 4/1/2021 to assist MCOs and LDSS to make appropriate and individualized determinations for utilization of home care services, including the number of assistance hours of care each day and how the needs for assistance can be met such as through telehealth, and other available alternatives, including family and social supports.

Continued Enrollment Assessment
Continued enrollment in a managed long term care plan shall be based upon a comprehensive assessment of medical, social and environmental needs, which shall be performed at least annually, rather than every six months.

PROVIDER LIMITS

MLTC Moratorium
In place from 4/1/2020 – 3/31/2021, there will be a moratorium on applications to operate as a Managed Long Term Care (MLTC) plan. The moratorium also prohibits the expansion of an existing MLTC’s service area or scope of eligible enrollee populations.

The budget also creates enrollment caps for MLTCs.

LHCSA Contracting under Medicaid
As part of the MRT II process DOH has proposed a process under the Medicaid program to enter into a "sufficient" number of contracts with Licensed Home Care Services Agencies (LHCSA) for Medicaid recipients.

This provision, now included in the budget, empowers DOH to propose a public process (RFP) which will include:

• criteria for selection of LHCSA contractors including: licensed under Article 36 PHL; geographic distribution to allow access to rural and underserved areas;
• cultural and language specific to recipients and workers; ability to provide timely assistance, experience in serving disabled persons; efficient and economic
• administration of LHCSA services; compliance with all federal and state laws including labor laws;
• selection in no less than 30 days after the RFP or public process is posted on DOH’s website;
• the Commissioner may run a continuous recruitment process for LHCSAs under these provisions; and
• the Commissioner may terminate any contract with a LHCSA under this program in 30 days.

Finally, any actions taken by the DOH under this program shall not constitute and shall not be construed to constitute an action with respect to a LHCSA's license or enrollment in the medical assistance program.

WORK FORCE

Worker Wage Parity
No payments shall be made to providers without the provider having delivered a written certification annually that the services provided are in full compliance with worker wage parity laws. Additionally, the certification must state that no portion of the worker wage parity money shall be returned to the provider other than to a home care aide.

Such written certification shall also verify that the MCO has received from the provider an annual statement of wage parity hours and expenses, accompanied by an independently audited financial statement verifying such expenses.

Providers’ contracts with MCOs shall also include a requirement that providers shall give a written certification, verified by oath, which attests to the provider’s compliance with wage parity laws.

Any provider who knowingly verifies the required statement falsely shall be guilty of perjury.

MCOs shall review and assess the annual wage parity statement and make a written referral to the Department of Labor for reasonably suspected failures of providers to conform to the wage parity law.

A provider that willfully pays less than the required wages and supplements is guilty of a misdemeanor.

Home Care Services Worker and CDPAP Personal Assistant Unique Identifier
Each home care services worker and each Personal Assistant shall obtain an individual unique identifier from the state by or before a date determined by the Commissioner.

New Sick Leave Requirements for Employers
Beyond the current new labor law requirements relative to COVID-19 or for Corona virus the State Budget included new sick leave requirements.

Every employer is required to provide its employees with sick leave as follows:

• For employers with four or fewer employees in any calendar year, each employee shall be provided with up to forty hours of unpaid sick leave in each calendar year
• For employers with four or fewer employees in any calendar year with a net income of greater than one million dollars in the previous tax year will provide each employee with up to 40 hours of paid sick leave.
• For employers with between five and ninety-nine employees in any calendar year, each employee shall be provided with up to forty hours of paid sick leave in each calendar year
• For employers with one hundred or more employees in any calendar year, each employee shall be provided with up to fifty-six hours of paid sick leave each calendar year

A calendar year is defined as twelve months starting January 1st and ending December 31st. Also, nothing in this section prohibits or prevents an employer from providing an amount of sick leave, paid or unpaid, in excess of the requirements in this section or from adopting a paid sick leave policy that provides additional benefits to employees.

An employer may decide to provide its employees with the total amount of sick leave required to fulfill the obligations under this section at the beginning of the calendar year as long as no employer may be permitted to reduce or revoke any such sick leave based on the number of hours actually worked by an employee during the calendar year.

Employees shall accrue sick leave at a rate of not less than one hour per every thirty hours worked, beginning at the commencement of employment or the effective date of this section, whichever is later, subject to the use and accrual limitations set forth in this section.

On and after January 1st, 2021 and upon oral or written request of an employee, an employer shall provide accrued sick leave for the following purposes:

• For mental or physical illness, injury, or health condition of such employee or employee’s family member, regardless of whether such illness, injury, or health condition has been diagnosed or requires medical care at the time that the employee requests the leave.
• For the diagnosis, care, or treatment of mental or physical illness, injury or health condition, or need for medical diagnosis, or preventative care for an employee or an employee’s family member.
• For an absence from work due to any of the following reasons when the employee or employee’s family member has been the victim of domestic violence pursuant to subdivision 34 of section 292 of the executive law, a family offense, sexual offense, stalking, or human trafficking:
• To obtain services from a domestic violence shelter, rape crisis center, or other services program;
• To participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or the employee’s family members;
• To meet with an attorney or other social services provider to obtain information and advice on, and prepare for or participate in any criminal or civil proceeding;
• To file a complaint or domestic incident report with law enforcement;
• To meet with district attorney’s office.

MEDICAID COMPLIANCE

OMIG Compliance Program
Every provider shall adopt and implement an effective compliance program, which shall include measures to prevent, detect, and correct non-compliance with Medicaid requirements and measures that prevent, detect and correct fraud waste and abuse.

OMIG Self Disclosure Program
The budget also creates an OMIG voluntary self-disclosure program for all persons owing an overpayment to Medicaid.

Conclusion
With the Legislature having passed the budget, legislators have departed Albany for their home districts under uncertain and unfamiliar circumstances.

It is an election year for all state legislators. They adjusted the legislative calendar to account for a change in the political calendar, with a plan to end session earlier than has happened in recent memory. It is not yet known when or if they will be back in Albany for legislative work later in the year.

HCP will continue to find opportunities to advocate for the Home Care industry as we continue our review of the budget, its impact and implications, and as the state moves toward implementing these new proposals.