Election Impact on Home Care & Hospice – Regulation

from the National Association of Home Care (NAHC)

Homecare: A Priority in Public Policy

“Our aging population must have access to safe and affordable care. Because most seniors desire to age at home, we will make homecare a priority in public policy and will implement programs to protect against elder abuse.”
— Statement from the Republican National Committee Platform, July 2016, Cleveland, Ohio

As I wrote last Friday, NAHC has been studying the health and home health policies of President-elect Trump and his allies in Congress and we have prepared a series of articles, to be published next week in NAHC Report, to address your questions and concerns. In addition, NAHC held a web teleconference on Tuesday, November 15, featuring the entire NAHC policy staff, to discuss the challenges and opportunities for homecare and hospice in the new administration and Congress. A second web teleconference will be held Friday, November 18. We will cover pre-claim review, face-to-face, value-based purchasing and much, much more. Reports of those teleconferences will be featured here in NAHC Report.

This is the first in our series of articles in NAHC Report that will offer our forecast of what may occur during the Trump Administration that might specifically affect home care and hospice. We view 2017 as presenting new opportunities to advance the cause of home care and hospice. However, any new administration and Congress can also present risks. We will explore both risks and opportunities in this analysis. Today’s focus is on existing regulatory and legislative issues facing home care and hospice. The VA home care program is another area that is in need of improvements. Will the new Administration provide a better path for home care and hospice to secure the regulatory and legislative changes that we feel are needed?

Will the new Administration provide improved regulatory and legislative opportunities for home care and hospice? Also, Will the Trump administration help to reform failing and unfair Labor Department policies that negatively affect home care and hospice workers and greatly increase costs of care to consumers and government health care programs?

Currently, the Medicare home health benefit is under siege by the Centers for Medicare and Medicaid Services (CMS) with its policies on physician certification and face-to-face physician encounters. Those policy problems are highlighted in the recent CMS program integrity initiative called “pre-claim review,” where Illinois providers are currently in the midst of a chaotic, confusing, inconsistent, and arbitrary process of having all claims subject to a full compliance review that is required prior to billing. That project is slated for expansion to four other states and could expand nationwide.

Medicare hospice is maturing as a benefit in terms of data requirements, oversight, quality of care initiatives, and rate reforms. Many of these developments are positive, but there are unknowns particularly in terms of future payment system reforms and public reporting of quality data.

At the same time, the home care industry has put forward a series of initiatives that would help modernize Medicare home health services, such as establishing authority for non-physician practitioners or NPPS (Nurse Practitioners, Physician Assistants, etc.) to certify Medicare coverage and creating a stand-alone telehealth benefit for remote monitoring of home-based patients.

Value-based purchasing of home health services is underway with a 9-state demonstration program. Congress is concurrently considering the legislating of a Post-Acute Care Value-Based Purchasing model that brings home health and all other post-acute provider sectors under its umbrella.

The U.S Department of Labor has promulgated a series of rule changes in recent years that have had a highly negative impact on home care companies, their clients/patients, and employees. Pushed by self-proclaimed worker advocates, DOL effectively eliminated the “companionship services” and “live-in” exemptions to the Fair Labor Standards Act (FLSA) as it applied to home care employees providing non-professional services, e.g. home care aides, personal care attendants. NAHC contested these changes in the rulemaking process, in the courts (all the way to the Supreme Court), and before Congress. A legislative reversal of the rule changes was burdened by the inability to move the bill forward in the Senate due to an expected veto by the President.

The prognosis of the impact of these regulatory changes by NAHC has, unfortunately, come true. Workers are subjected to 40 hour a week restrictions as home care companies have not seen Medicaid rate increases to cover overtime costs and do not want to impose higher charges on private pay clients that would be needed for overtime costs. Live-in home care services have all but disappeared except through the “gray market” of classified ads and unsupervised, untrained “independent contractors.”

The capping of work hours has led to increased caregiver turnover that increases care costs. The new Administration has the authority to reverse the rule changes and return to the standards in effect from 1975 to 2015 where the interests in making care affordable are balanced with worker protections. There also is pending legislation that would bring about a restoration of those standards. Unlike the Obama administration, the Trump administration has no ties to the Service Employees International Union (SEIU) that led the effort to eliminate the overtime exemptions.

The Trump administration can be expected to face demands for increases in the minimum wage standard. Candidate Trump has offered some support for increasing the minimum wage, but not to the $15 level sought by some worker advocates. His position on overtime is not known.

House Majority Leader Kevin McCarthy (R-CA) and Republican committee chairmen sent a letter November 14 to all government agencies requesting that no new regulations proceed in the remaining weeks of the Obama administration. In addition, the House will vote this week on legislation to prevent issuance of what are sometimes called “midnight regulations.” President Obama has vowed to veto such a bill, but some conservative Republicans have suggested attaching it to an upcoming appropriations bill to continue funding the government beyond December 9.

Examples of possible regulation that could be held up the GOP call to stop any further regulations are:

Program Integrity Enhancements to the Provider Enrollment Process (CMS-6058-F) and Conditions of Participation for Home Health Agencies (CMS-3819-F), which are both in the OMB, but not cleared yet and are likely to be delayed with the new administration.

Will the new Administration provide a better forum to hear the voice of home care and hospice on all these issues?

Forecast:

  • Opposition to pre-claim review in Congress has been bipartisan, but the Democratic administration has been highly resistant to suspending the project. We believe that the new Administration will come in without any bias towards the concept of pre-claim review, favorable or non-favorable bias. That objectivity will provide a fair and reasonable opportunity for home care to “makes its case” against the inefficiencies, arbitrariness, and harmful effects of pre-claim review that victimizes innocent Medicare beneficiaries and creates compliance burdens for home health agencies.
  • The physician certification requirements and the F2F elements incorporated therein do not fit the benefit in that they turn Medicare coverage into a paper chase where the HHAs are responsible for the documentation controlled by outside physicians in a system where compliance standards remain a mystery. These requirements are the creature of outgoing CMS leadership. A new slate of appointees to manage CMS should provide a real opportunity to change the course of a set of unmanageable documentation requirements and bring some practical, common sense back to Medicare.
  • The evolution of the Medicare hospice benefit has been sensible and deliberative in most respects. We expect the new Administration to continue down that path, providing a transparent and participatory forum for modernizing the benefit operation.
  • A current roadblock to securing an overdue reform in Medicare to allow for NPP certification authority is CMS leadership. CMS has raised unfounded concerns about weakened program integrity if NNPs can authorize home health services. CMS has also questioned whether the quality of care would be compromised. A fresh and objective review of the facts by a new Administration could remove the current roadblocks to bipartisan passage of reforms to the home health benefit to allow for NPP certification authority. These reforms are essential as NPPS continue to increase as primary care practitioners in the community.
  • We do not see the new Administration as derailing the push towards value-based purchasing and innovative payment reforms such as bundling. However, we expect the new Administration will move away from premature reforms and those that are broad-based and mandatory as compared top experimental. Overall, we expect to see the Trump administration to support value-based purchasing and bundled care/payment as ways to modernize Medicare.
  • Rate cuts have long been an issue in Medicare for all providers. MedPAC has and will continue to recommend Congress cuts rates in home health services and hospice as MedPAC routinely recommends in pretty much all sectors. The Republican-majority in Congress has not been very interested in rate cuts to providers. Instead, its focus is on changing the cost curve through innovations like value-based purchasing.  We expect the 2017 Congress, with the support of the Trump administration, to stay the course in that regard. That does not mean that rate cuts are off the table. Instead, it means that the type of across-the-board cuts that have been imposed in the past will not be the course of first choice.
  • Medicaid regulatory actionis well within the realm of possible in the Trump administration. In 2016, CMS promulgated a new rule that puts CMS in front of state rate changes to providers of services. This rule would likely change CMS from an inactive oversee of state rate changes into a more active one. The Trump administration has indicated general support for state-controlled decision-making in a number of spheres.  That translates to the probability that the new Administration will be more ”hands off” rather than “hands on” with respect to Medicaid provider payment rates.
  • The VA health care program has had many problems in recent times. We expect the new Administration will take quick steps to improve that program for the benefit of deserving veterans. In particular, we expect the Trump administration will improve the day-to-day operation of the VA program so that patients have unencumbered access to home care in a program that all stakeholders can understand.
  • The Obama DOL had promised SEIU to eliminate the home care OT exemption during the 2008 presidential campaign. As such, it was committed to take the action that ultimately took effect in October 2015. That commitment blinded the Obama administration to the realities of what would occur for workers, home care clients, and financial demands on government health care program financing. The new Administration comes in without preconceptions or bias on these issues.  That will permit the Trump DOL with the opportunity to reverse the harmful rules as did the George W. Bush administration that faced similar rules left pending by the Clinton administration. NAHC intends to seek that reversal with the incoming DoL leadership.
  • The new Congress is not burdened by an expected presidential veto of any bill that reverses or reforms the Obama DoL policies. NAHC will work to advance the legislation pending in the House and Senate that achieves that reversal.

Summary:

We believe that the new Administration presents an opportunity to clean the slate on the current entrenched CMS views on certain regulatory policies such as pre-claim review and F2F physician documentation along with the roadblocks that CMS presents on Medicare program reforms like NPP certification authority. While we recognize that many current CMS staff will remain as they are not political appointees, the CMS leadership will change and present new opportunities to create support for the reforms that NAHC believes will benefit patients, providers and Medicare.

The direction of the incoming Trump administration at the DOL is not well informed by action or policy positions advanced during the campaign other than qualified support for some increases in the minimum wage. It is believed that the Trump administration may present an opportunity to reverse some home care-related changes in overtime compensation obligations that have negatively affected home care workers, clients, and funding sources.