Top Home Health, Home Care Legal Concerns for 2021

Wage-and-hour litigation, confusing state-level regulations and an increase in federal audits were among the biggest legal trends of 2020. While many of these issues will remain in the year ahead, 2021 will also bring several more legal hurdles for home-based care providers.

The decision of whether to mandate COVID-19 vaccinations for home health and home care workers is toward the top of that list. Other emerging legal battles that will shape 2021 include telehealth dos and don’ts.

To keep in-home care operators in the legal loop, Home Health Care News reached out to four attorneys who specialize in the field. The group of legal experts offered their take on the biggest focus areas of 2021.

Their responses are below, edited for length and clarity.

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An enormous challenge home care and home health providers face is remaining compliant with the myriad of federal, state, and local laws and regulations that continue to change at a record pace. It is critically important that providers have a comprehensive legislative tracking process and adopt proactive compliance strategies to both identify changes and modify their policies and procedures to conform appropriately. Providers that operate in multiple jurisdictions or states are especially confronted with this challenge.

One of the most straightforward examples is ensuring compliance with the payment of varying minimum-wage rates. The federal minimum wage is currently $7.25 per hour. However, the Biden administration will likely seek a $15 federal minimum wage. Many states already require a higher minimum wage, such as Colorado’s $12.32 requirement. Some states — such as California — have local jurisdictions, each with its own unique minimum wage requirements that often depend on the number of employees within a given business.

Another major trend to watch out for is the enactment of Domestic Workers Bills of Rights (DWBRs) across the nation. These laws provide specific requirements that employers within a given jurisdiction must adhere to with regard to minimum wages, overtime wages, discrimination and harassment complaints, training requirements and much more. Last year, Philadelphia became the 10th jurisdiction to enact employment legislation to protect domestic workers — and some may recall the federal DWBR legislation sponsored by Kamala Harris in 2019.

We can anticipate a revival of that effort under the Biden administration.

Angelo Spinola, co-chair of the home health and home care industry group at Littler Mendelson

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If I had to pick one legal issue to watch in 2021, it would be health care payment and coverage reform. While the Affordable Care Act was enacted over a decade ago, its wake continues to make waves in the health care sector. Legal challenges remain unresolved in the courts. Twelve states have not expanded Medicaid. Over 10% of Americans remain uninsured. Federal agencies continue to use their broad regulatory authority to push providers toward value-based reimbursement.

With the inauguration of Joe Biden, I anticipate seeing significant efforts to build on the ACA and, potentially, legislative attempts to expand coverage. While Democrats will control the White House and both chambers of Congress, their razor-thin margin in the Senate makes “Medicare for All” proposals unlikely.

Although the regulatory proposals have been overshadowed by recent events, the Trump administration has proposed or finalized rules that could have a significant impact on provider payment and oversight. A significant theme in 2021 will be the extent to which the Biden administration alters or replaces those rulemaking efforts

As we emerge from the pandemic — hopefully soon — federal and state governments and private payers will examine the many regulatory waivers and flexibilities granted during the public health emergency. Which ones will stay? Which will go? Only time will tell.

— Matt Wolfe, partner at Parker Poe

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2020 shined a spotlight on the importance of home health care, as in-person doctor visits were no longer accessible to seniors and facility-based providers dealt with depleted resources and fewer available beds. As access to services dwindled and remote care began to flourish, a massive inequity affecting home health care was revealed.

Remote care services are frequently not reimbursable in a home health setting — and any home health visits delivered via telehealth do not count toward LUPA thresholds during an episode of care. That policy essentially punishes these home health providers that use telehealth to supplement in-person care. In an environment swiftly moving toward value-based outcomes and technology-driven efficiencies, this disparity became evident to policymakers, who are now working toward a remedy.

For those companies who rely on fee-for-service income, the motivation to transform businesses using new technologies will continue to lag unless we figure out a way to increase financial incentives to enable such transformation. We should expect to see innovative home health companies form or participate in value-based enterprises under the newly published Anti-Kickback Statute safe harbors as a way to compensate for the current lack of reimbursement for virtual services.

— Rebecca Gwilt, partner at Nixon Gwilt Law

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The first half of 2021 will keep providers occupied with getting their employees and patients vaccinated. The pandemic has caused, in many respects, the reduction of home care hours as patients are concerned about aides bringing COVID-19 into the home.

The vaccine offers providers the opportunity to reassure their patients that the aides are not bringing the virus into the home. In turn, it’s a way to increase hours. Therefore, we anticipate that providers will launch wide-scale efforts to get their workers vaccinated. This will involve helping the caregivers understand the importance of being vaccinated and, in some cases, conditioning future and continued employment on the employees’ agreement to become vaccinated.

— Emina Poricanin, managing attorney of Poricanin Law

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Providers Scramble to Figure Out EVV as Implementation Date Inches Closer

When it comes to clinical and operational efforts, COVID-19 has been at the forefront for most home-based care providers.

With the public health emergency top of mind, it may be easy to forget that new federal technology requirements — electronic visit verification (EVV), in particular — are right around the corner.

Starting on Jan. 1 of next year, Medicaid-reimbursed home care providers are required to electronically verify the services that they deliver in the field. Caregivers must record data points, including date, time, location, type of service and other information.

Medicare-certified home health providers won’t have to do so until Jan. 1, 2023.

EVV originally became law in 2016 under the 21st Century Cures Act, with the goal of curbing fraud and abuse in the delivery of home-based care. The law sets the federal guidelines for EVV, but the mandate is administered at the state level.

States that aren’t compliant with EVV guidelines by the Jan. 1 deadline will be subject to a reduction in Federal Medical Assistance Percentage funding, which in turn impacts resources for state programs.

In some ways, it makes sense that the implementation of EVV has been placed on the backburner for some providers.

Originally, EVV adoption was supposed to take effect on Jan. 1 of 2020 — this year. Instead, most states — New York, for example — applied for and received exemptions, which pushed implementation back a year.

“New York state had several requests to postpone the implementation, given the difficulties in rolling this out in the personal care industry,” Emina Poricanin, managing attorney of New York-based Poricanin Law, told Home Health Care News. “Those were granted. New York state didn’t have the ability to just unilaterally postpone it.”

Now, roughly two weeks before providers are meant to be in compliance with the law, some providers feel less than prepared, according to Poricanin.

“There are way too many providers out there who are still calling to this day, asking what is EVV and what do I have to do about it,” she said. “Those are very late questions to be asking at this point in the game.”

States also have a hand in overall preparedness industry-wide, Courtney Martin, EVV expert of technology solutions provider CellTrak, told HHCN.

“That very much depends on the local state implementation plan. … Some states have been early with their implementation and are already to the point where they’ve given a lot of guidance to their providers around expectations and how they’ll be measured against them,” Martin said. “About half the states have done that. Then there are some states that are taking a little bit longer to implement.”

CellTrak is a Schaumburg, Illinois-based provider of home-based care solutions, including EVV, for more than 4,000 home care agencies internationally.

Providers have two responsibilities when it comes to the mandate. They have to collect correct, compliant EVV information in the field, at the point of care. Additionally, providers have to relay that information to the state or to the managed care organization that requires this data for compliance.

This means that whatever technology solutions a provider has in place must help them accomplish this, according to Martin.

To this end, providers have the option of implementing either a state-procured EVV solution or a commercially available solution.

“Those decisions are obviously very unique to the providers,” Martin said. “Generally speaking, the state system will include a very straightforward check the box compliance. Some providers that are trying to meet the minimum requirement, may choose to adopt the free solution.”

However, for providers that operate on a multi-state level, this may create challenges, according to Martin.

“The downside to a free solution is that if you are operating in multiple states, and those states all have different free solutions, this can be complicated for an agency,” she said. “Now, the agency is trying to support training and monitoring their caregivers on these different state solutions.”

When it comes to deciding on a technology solution, providers should consider their company’s operational workflow, as well as state compliance requirements.

As the EVV implementation date inches closer, Martin stressed the importance of providers beginning the data collection and documentation process as soon as possible.

“We encourage providers to do that, rather than waiting for state guidance,” she said. “The reason being that it’s time for their caregivers to get used to the technology solution. It gives them time to think through how their workflow, internal to the agency, is after their EVV processes are in place. It also gives them time to be prepared for when that state guidance comes.”

Providers should also follow state stakeholder meetings in order to stay up to date with the new information.

The state of New York, for example, has held weekly calls over the past several months. The aim of the calls was to help providers get prepared and address some of the technical issues associated with EVV, according to Poricanin.

As providers continue to operate amid the public health emergency, Martin believes that EVV adoption will help improve care delivery.

“You’re going to have way more information about that patient — and about the care that they need,” she said. “This can help you do a better job in the visit and also alert you to any specific circumstances that you need to know, including that patient’s potential sensitivity to being exposed to COVID-19.”

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Court Ruling Could Prove Costly, Remove Home Care Agencies from FFCRA ‘Exemption List’

When the Families First Coronavirus Response Act (FFCRA) was signed into law in March, home-based care providers were exempt from granting their workers a handful of benefits related to the coronavirus, such as extensive paid sick leave and paid time off.

But on Monday, the federal court for the Southern District of New York ruled that the U.S. Department of Labor (DOL) was overbroad in how it defined the exemption for employees of “health care providers.” The U.S. DOL was responsible for defining what types of providers and caregivers were exempt from FFCRA’s coverage as employees of health care providers.

The ruling was in response to a lawsuit from the New York Attorney General after the regulations were set by the DOL.

A narrowing of the health care provider exemption could mean serious trouble for home-based care providers that were operating under the assumption they would be exempt from the FFCRA’s requirements. While that’s especially true for those in New York and Connecticut, the ruling could set a precedent with broader implications moving forward.

“This turns everything on its head, because the providers that I have worked with over the last few months have been relying on these regulations in structuring their leave policies and deciding who can take paid, job-protected leave and who cannot,” Emina Poricanin, the managing attorney of New York-based Poricanin Law, told Home Health Care News.

The FFCRA officially went into law on April 1.

Broadly, the ruling could mean that agencies with less than 500 employees will need to grant paid time off to any employee who is ordered to quarantine or isolate by a public official. The same holds true for employees who have been advised to self-quarantine by a health care provider or who have been experiencing COVID-19 symptoms.

It also could mean up to 12 weeks of paid time off for any employee caring for a child experiencing a school closure.

The ruling is effective immediately, according to Poricanin.

“The DOL regulations effectively said that employees of health care providers would be excluded — and also that any employee, no matter whether they perform health care duties or not, will be deemed exempt from the FFCRA,” Poricanin said.

That resulted in many employees from home-based care agencies — on the front lines or otherwise — not being granted paid time off under the FFCRA.

It is still not clear how the law will be interpreted, particularly for employees who were furloughed or not granted paid time off from April 1 until Monday.

“Based on this decision, home care providers will arguably have to provide their office employees who need child care accommodations with 12 weeks of paid time off, and that’s going to create a huge problem for providers,” Poricanin said. “Then there’s the question over what do we do about the retroactive period — that time from when the regulations took effect [until now].”

Providers will be operating in even murkier waters until they get further clarification.

“There’s a possibility that employees could claim that they’re owed paid time off for retroactive periods when they were ‘forced’ to take a furlough due to child care concerns that were caused by the coronavirus,” Poricanin said.

Poricanin said she would not be surprised if the DOL appealed the decision.

Until then, providers will have to make hard decisions over how they’re going to operate – and how they will address requests for time off that, arguably, qualify for paid time off under the FFCRA.

“There will have to be some strategic decisions made by providers who are bound by this court decision about how to apply this in their workplace, depending on their state, their size and what services they’re providing, whether that’s companion care, home care or skilled home care,” Poricanin said.

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