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DOL Homecare Rule Webinar

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WEBINAR INFORMATION:

The Department of Labor (DOL) published a Final Rule on October 1, 2013 extending minimum wage and overtime pay protections under the Fair Labor Standards Act (FLSA) to most home care workers (who may have job titles such as home health aide or personal care assistant) who provide essential assistance to people with disabilities and older adults.  On August 21, 2015, the U.S. Court of Appeals for the D.C. Circuit issued a decision upholding the Final Rule.  On Friday, September 18th from 2:00-3:00pm Eastern Time, senior leadership from the U.S. Department of Labor’s Wage and Hour Division and Office of the Solicitor will hold a webinar to discuss the Home Care Final Rule.  Presenters will provide an overview of the Final Rule as well as the Department’s guidance regarding joint employment in domestic service employment under the FLSA and the application of the FLSA to shared living programs.  Our comments will address questions we have received from states, including about the home care litigation.

TO REGISTER FOR THE WEBINAR:

Please click https://www.eventbrite.com/e/home-care-final-rule-implementation-webinar-for-states-registration-18538483102  to register for the webinar.

Once you register, you will receive an email with the information you need to access the webinar.

QUESTIONS:

There will be a question and answer period after DOL’s presentation.  If you would like to submit a question(s) in advance, please email it totatum.laura@dol.gov at your earliest convenience.  During the webinar, we will respond to as many questions as possible.

FOR MORE INFORMATION:

Information about the Home Care Final Rule is available athttp://www.dol.gov/whd/homecare/.

Information about the litigation related to the Home Care Final Rule is available at http://www.dol.gov/whd/homecare/litigation.htm.

U.S. Court of Appeals Unanimously Upholds DOL Home Care Rul

U.S. Court of Appeals Unanimously Upholds DOL Home Care Rule

 

Thank you for your engagement with the Department of Labor’s Wage and Hour Division regarding the Home Care Final Rule.On Friday, August 21, the U.S. Court of Appeals for the District of Columbia issued a unanimous decision upholding the Home Care Final Rule. DOL issued the statement below, which is available on our website at http://www.dol.gov/whd/homecare/litigation.htm

This site will be updated with any changes related to litigation, so please check back for updates.

Today’s decision from the U.S. Court of Appeals for the District of Columbia is vital to nearly two million home care workers, who will now qualify for minimum wage and overtime protections. The decision confirms this rule is legally sound. And just as important, the rule is the right thing to do — both for employees, whose demanding work merits these fundamental wage guarantees, and for recipients of services, who deserve a stable and professional workforce allowing them to remain in their homes and communities.

The DOL has led an unprecedented implementation program to help employers prepare for compliance, including offering an extensive and individualized technical assistance program, providing a 15-month period before the effective date to aid compliance, and adopting a time-limited non-enforcement policy. DOL has repeatedly encouraged states and other employers to take the necessary steps toward implementation. The Department continues to stand ready to provide technical assistance to states and other entities as they implement the Final Rule.

Florida Medicaid Provider Self Audit Resources – Now Available

FLORIDA MEDICAID
A Division of the Agency for Health Care Administration

Florida Medicaid Health Care Alert
July 2015

Provider Self Audit Resources are Now Available on the Agency’s Website

Medicaid providers are encouraged to voluntarily conduct self-audits and remedy any issues of non-compliance that are identified, including either voiding/adjusting improper claims or submitting to the Agency’s Bureau of Medicaid Program Integrity (MPI), the self-audit findings and repayment of the improper claims.

MPI recommended that providers review claims with dates of service as old as five years to the present.  MPI also encourages providers to engage in routine self-audits of more current claims (most recent twelve months).  This allows providers to have the opportunity to remedy the claims before an Agency-initiated audit.  When the Agency conducts an audit, it is entitled to recover the costs of the audit and is required to assess sanctions for the non-compliance.  A provider who conducts a self-audit, submits the results, and remits payment, may avoid sanctions for their voluntary disclosure and repayment of overpayments so long as the Agency determines that the disclosure is valid and so long as it is not discovered to be an attempt to alleviate liability for fraudulent practices.

Information about conducting self-audits is available on the Agency’s website, on the MPI landing page.  Please see the below screen-shot which demonstrates how to navigate from the Agency’s home page to the MPI landing page.

Medicaid providers are encouraged to voluntarily conduct self-audits and remedy any issues of non-compliance that are identified, including either voiding/adjusting improper claims or submitting to the Agency’s Bureau of Medicaid Program Integrity (MPI), the self-audit findings and repayment of the improper claims.

Questions regarding conducting a self-audit may be directed to Pam Fante via email at Pam.Fante@ahca.myflorida.com and please include the question in the email.

CMS: New Manged Care and Quality Assurance Standards

The “correct” quality assurance program will always be a question until CMS requires states to standardize their Managed Care processes among MCOs in each state. We all have the opportunity to discuss standardization now, which will not come around again for years. Please see the below information from ANCOR. I encourage people to comment on the CMS proposed rules. CMS Issues

Landmark Proposed Rule on Medicaid Managed Care

On June 1, the Centers for Medicare and Medicaid Services (CMS) issued a proposed rule titled “Medicaid and Children’s Health Insurance Program (CHIP) Programs; Medicaid Managed Care, CHIP Delivered in Managed Care, Medicaid and CHIP Comprehensive Quality Strategies, and Revisions Related to Third Party Liability.” The agency states that this proposed rule would modernize the Medicaid managed care regulations to reflect changes in the usage of managed care delivery systems.

Home care providers will want to be aware that the proposed rule proposes to add a definition for long term care support services (LTSS).  The CMS proposal defines LTSS as “services and supports provided to beneficiaries of all ages who have functional limitations and/or chronic illnesses that have the primary purpose of supporting the ability of the beneficiary to live or work in the setting of their choice, which may include the individual’s home, a provider-owned or controlled residential setting, a nursing facility, or other institutional setting.”  CMS states that they intend for community based services within the scope of this definition to be largely non-medical in nature and focused on functionally supporting people living in the community.  Examples of what CMS would consider community based LTSS include Home- and Community-Based Services (HCBS) delivered through a section 1915(c) waiver, section 1915(i), or section 1915(k) state plan amendments, as well as personal care services otherwise authorized under the state plan.

HCAOA also notes that CMS is seeking to amend the existing regulation requiring each state to establish a credentialing and re-credentialing policy that addresses all the providers, including LTSS providers, covered in their managed care program regardless of the type of service provided by such providers.

Comments on the proposed rule will be accepted through July 27, 2015. A copy of the proposed rule can be found at http://www.regulations.gov/#!documentDetail;D=CMS-2015-0068-0001

New Personal Care and Support Coordination Rates for APD providers

New Rates for July 1, 2015

APD announced that effective July 1, 2015, Personal Supports QH, Personal Supports Day, Support Coordination and CDC+ Consultant will all have an increased rate.  Please see the link below for all the new rates.  The changes to the cost plans and budgets will be made electronically and will not require the WSCs to redo any service authorizations and will not require the Regions to re-approve any service authorizations. That is the good news!

1) iBudget will be brought down on July 1st so the changes can be made.  All FY 15-16 cost plans must be in approved status.  Any cost plans that are in draft, or pending review status will have to be deleted by IT and any changes that have been made to those plans will be lost.

2) Please review all cost plans that are Pending Area Office Review for FY 15-16 and get them to approved status as soon as possible.  If the reason for the pending review is due to a rejected service authorization that you are unable to resolve, complete a help desk ticket.

3) State Office staff will be reviewing any cost plans in Pending State Office Review to get them in approved status.

4) If support coordinators have consumers who currently have a FY 15-16 budget, however; they will not have a cost plan built prior to 7/1/15; the support coordinator will need to work with Region staff to get the budgets adjusted manually.  Since those cost plans may or may not come for Region review, they will need to notify you who those consumers are.

5) Please encourage support coordinators to stop making any changes to cost plans after June 28, 2015 unless there is an emergency.  This will give both the Region and State Office staff time to assist with getting all plans into approved status.

Court Ruling Related to the DOL Companion – Home Care Rule

This is a follow up to the DOL emails we sent earlier today.  After consideration of the parties’ pleadings, the arguments of counsel and relevant law, and the entire record in this case, plaintiffs’ motion for a partial summary judgment is GRANTED, defendants motion is DENIED, and the Department of Labor’s Third Party Employer regulation scheduled to go into effect on Jan 1, is VACATED.  See below for a summary on the decision.

The United States District Court for the District of Columbia has today issued a partial summary judgment on two pieces of a lawsuit filed by the Home Care Association of America and other plaintiffs related to the Department of Labor’s Home Care Rule. Please note that this information is not legal advice, and is shared after a swift and preliminary review of the decision.

The decision notes that after consideration of the parties’ pleadings, the arguments of counsel and relevant law, and the entire record in this case, plaintiffs’ motion for a partial summary judgment is GRANTED, defendants motion is DENIED and the Departments Third Party Employer regulation scheduled to go into effect on Jan 1, is VACATED.

The largest area implicated by this decision is the third party employer regulation, which withdrew the availability of the companionship and live-in caregiver exemptions from third parties.

Companionship Exemption

As you know, the companionship exemption was impacted in two important ways by the Home Care rule. First, the rule established that the companionship services exemption is not applicable when the employee spends more than 20 percent of his or her workweek performing care services. This portion of the regulation is NOT impacted by this decision, so the companionship exemption is available only when this percentage test is met.

Second, the rule set forth that the companionship exemption is not available to third party employers. This portion of the rule, called the Third Party Employer regulation, is impacted by this court decision by allowing third party employers to avail themselves of the exemption. This means that, for situations meeting the definition of and test for companionship, workers can receive straight pay, not overtime for work over 40 hours/week even when there is a third party employer.

Live in Exemption

Like the Companionship exemption, the DOL rule removed the availability of the live-in caregiver exemption from third party employers. This ruling allows third parties to utilize the exemption, enabling straight pay for live-in caregivers, including for those hours worked over 40.  For details on what constitutes a “live-in” domestic service worker and other conditions of the exemption, see Fact Sheet #79B: Live-In Domestic Service Workers Under the FLSA. http://www.dol.gov/whd/regs/compliance/whdfs79b.htm

While this is decision is important, this case has not been fully decided (there are other counts to be considered by the court) and there will likely be appeals filed, even on this limited judgment.  As a result, states should remain vigilant in their planning and budgeting in the event that, at the conclusion of these legal proceedings, the original rule will be in full force and effect.

NASDDDS will continue to closely monitor developments and keep you apprised.

To read the court’s decision, visit:

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2014cv0967-21

 

14c Subminimum Wage Certificates-Talking Points

FARF-Rework-PRINT-REGSuzanne Sewell, President & CEO , Troy Strawder, Board Chair

On July 22, 2014, President Obama signed the Workforce Innovation and Opportunity Act.  The bill addresses unemployment across the spectrum – from vocational training, resume writing and English as a second language, to laid-off workers, disabled veterans and Americans with disabilities – the legislation casts a wide net through a host of federal government programs.  In terms of Americans with disabilities, the bill is aimed at helping to prepare a new generation of young people with disabilities to succeed in competitive employment and predominantly impacts individuals with disabilities who are 24 years old and younger.  This “new generation” will be required to first try vocational rehabilitation services before they are permitted to work in jobs paying less than the federal minimum wage.  The bill is compatible with Florida’s Employment First Initiative which Florida ARF supports.

Meanwhile, Congressman Gregg Harper of Mississippi is sponsoring the Fair Wages for Workers with Disabilities Act of 2013 (HR 831), that if passed, would phase out 14(c) special wage certificates under the Fair Labor Standards Act of 1938 over a three year period.  The bill has 94 sponsors and additional members of congress are poised to sign on.  In Florida, six members of the congressional delegation have already signed onto the bill – Corrine Brown, Kathy Castor, Ander Crenshaw, Alcee Hastings, Daniel Webster, and Dennis Ross.

Now more than ever, the insights and viewpoints of Floridians with disabilities and their representatives are essential to the policy discussions going on at the national level.  As we know, one size does not fit all.  Many Community Rehabilitation Provider Agencies serve diverse constituencies and it is imperative that we make sure our congressional leaders are provided with a balanced perspective on the concerns and merits of center-based work experiences and 14(c) certificates and the need for more oversight of the programs at the federal levels.  A number of variables play into the current equation including funding mechanisms, appropriate budget allocations and limits to disability compensations making it imperative that our congressional leaders recognize the true complexity of these issues.

We believe employees with disabilities and their representatives are the ones who should explain their experiences and tell their personal stories and that their representatives will hear and understand the complexities of the pending policy issues best when it comes from their own constituents.

Congressional Education Campaign

Florida ARF will be assisting its member agencies and interested parties with a campaign to educate members of the Florida Congressional delegation about the long-term implications of the policy decisions they are currently addressing.  We encourage recipients and community rehabilitation providers to demonstrate real-life examples of how the proposed legislation to phase out 14 (c) would impact Floridians with disabilities in each congressman and woman’s district.

Collecting Authentic, Florida Stories

First and foremost, the campaign will involve telling the stories of employees throughout the state about their experiences in center-based employment environments and 14(c) employment opportunities and what they and their caregivers would be doing if the programs were eliminated.

Even though we support federal legislation and Employment First trends for younger employees with disabilities for youth transitioning out of school, we still need to feature current employees that would not be served outside of their current environments so that every individual with a significant disability has employment options.  Therefore, we have developed a form to help your staff document the unique stories of the individuals they serve who receive 14 (c) subminimum wages.

Developing the Packet and Case Statement

With collaboration and final approval from each participating agency, staff will develop a packet of the top stories.  The packet will also include white papers from appropriate sources, a Florida ARF position paper, and other relevant materials developed in collaboration with staff from a member agency.

Schedule Visits to Congressional District Offices

The Florida ARF Grassroots webpage contains information on how to set up Congressional appointments and a link to each US Senator and Representative serving Florida.  Whenever possible, these visits should include employees with disabilities, their families, and other stakeholders on the scheduled visit to the congressional office.  Remember, the purpose of the visit is to ensure that each congressional office hears directly from the community that will be impacted by the pending policy changes and what repercussions it will have on both the employee and the employee’s caregivers’ quality of life.

Let’s make a difference nationally and empower all Floridians with disabilities to validate the current merits of their employment!

Therap Services Announces U.S. Patent Issuance for Secure Electronic Reporting of Abuse or Neglect for I/DD Provider Agencies

WATERBURY, Conn., June 18, 2014 /PRNewswire/ — Therap Services, leader in electronic documentation software for Intellectual Disability and Developmental Disability Service Providers, has received U.S. Government Patent No. 8,739,253 B2 for Managing Secure Sharing of Private Information Pertaining to Abuse or Neglect Across Security Domains on May 27, 2014.

Justin Brockie, Therap Services COO, states: “The award of this patent again confirms Therap’s status as the software leader in the intellectual disability community.  States and providers using Therap have shown the benefits of our approach to secure transparency and real time sharing.  These approaches can have a direct impact on the systems that support people with disabilities and prevent abuse, neglect and exploitation.”

Therap’s patented application for secure sharing of private information pertaining to abuse or neglect includes granting a staff user from one agency (such as an Oversight Agency) the ability to access private information stored within a secondary Provider Agency account when access authorization is in place through assigned caseloads and permissions. This method ensures that staff members are able to securely access private information based on ‘need to know’.

Therap Services applications and certified Electronic Health Record (EHR) provide the documentation components needed by Intellectual Disability and Developmental Disability Service Agencies to maintain their focus while adapting to a changing environment within the Human Services industry.  State and federal agencies and standards, including CMS and HIPAA, mandate strict requirements on accurately tracking incidents, including those reports of abuse and neglect and prevention of Medicaid fraud. Therap’s customers can complete and monitor documentation efficiently across secure domains, enabling them to focus on providing higher quality services to individuals with intellectual and developmental disabilities.

Therap’s applications are utilized across disciplines in the I/DD field per the CMS home and community-based services (HCBS) requirements. Therap applications include over 70 modules ranging from documentation of service provision through a daily note, to person centered planning tools, incident report management, health assessments and individual care plans, an electronic MAR integrated with an industry-standard drug database, an individual referral process for state and multi-provider systems, a comprehensive report library for internal and external audits, to electronic billing direct to Medicaid through a secure, HIPAA 5010-compliant method.

About Therap Services, LLC

Therap Services’ certified EHR and documentation software solution are utilized by over 220,000 users in 1300 Intellectual Disability and Developmental Disability Provider Agencies. Use of Therap Services is mandated by 5 state governments. Therap’s software solution is used in home and community-based services (HCBS), intermediate care facilities for the developmentally disabled (ICF-DD) and other settings to document waiver service provision, employment supports, case management, incident reporting, management of staff training records and for electronic billing claim submissions directly to Medicaid. Therap Services is HIPAA OMNIBUS ACT of 2013 compliant. Learn more at www.therapservices.net.

 

 

IPad Kiosks for Therap in Residential & Day Programs

Carolina Autism Supported Living Services in Charleston South Carolina has found a great way to use IPads in their group homes for documenting in Therap!  Here is a description and pictures from Phil Blevins, Executive Director:

 

“We used iPadWallBracket.com for the enclosure. There are many other sites with similar products but this seemed best for our purposes. We chose the enclosure that covers the “home” button. Then we installed a Kiosk program on the iPad. We chose Kiosk Pro from the Apple store. It’s free but there is a paid version with more features. We set the Therap login page as the start page and limited the kiosks browsing range to the therap domain. There are a few things I could note about setting it up if you ever want details.

We mounted the enclosure to a rolling laptop stand from Office Depot. Since it is plastic we chose not to drill holes in it but used a metal/plastic polymer adhesive to attach the enclosure.

We used iPads with WiFi instead of 3g so we have to make sure there is a working wireless router in the houses. And I’ve noticed that the iPad can’t handle the pop-up body image when entering skin/wound notes. But the staff person can still choose body parts from the drop-down menu. There may be other iPad quirks but we haven’t run into them yet.”
IPad Kiosks for Therap in Residential & Day Programs1      IPad Kiosks for Therap in Residential & Day Programs3  IPad Kiosks for Therap in Residential & Day Programs2

Charleston-Low Country to New Jersey-Garden State!

This week Kris Keppler, Therap Implementation and Training Specialist provided the staff training for Therap’s first customer in the Charleston, SC Area, Carolina Autism Supported Living Services!

Carolina Autism Supported Living Services! Visit them at http://www.casls.org

They specialize in supporting individuals and families related to Autism and providing ABA Services: Applied Behavior Analysis!

I met Kris in Charleston on Wednesday evening for dinner, walked old historic Charleston which is a fantastic city and then we did several Demos of Therap in the Region.  The response to Therap was Great!  I expect we will be seeing much growth in Therap around the area and State this year.  Here a few shots of the local area!

Charleston pic1Charleston pic2

Charleston pic3Charleston pic4