The Texas Health and Human Services Commission (HHSC) announced newly adopted interim per diem reimbursement rates for large, state-operated Intermediate Care Facilities for Persons with Mental Retardation (ICF/MR), including state schools operated by the Texas Department of Aging and Disability Services: $345.87 for Medicaid-only clients and $338.59 for dual eligibles. The public hearing was held on November 6, 2006.

Mark your calendars for upcoming public hearings for proposed provider reimbursement rates. HHSC will hold a hearing on February 14, 2007, at 2:00 p.m. for public comments on proposed interim Medicaid reimbursement rates for small, state-operated ICF/MRs. The public hearing will be held in the Lone Star Conference Room at HHSC’s Braker Center office located at 11209 Metric Boulevard, Building H, Austin, Texas.

For more information on other HHSC public hearings, see the relevant section of the January 26 Texas Register.

Last year, the Health and Human Services Commission (HHSC) proposed two amendments to implement a supplemental payment program to private hospitals. The Centers for Medicare and Medicaid Services approved the proposed amendments.

For more information about the amendments, visit the relevant section in the January 19, 2007, Texas Register.

Submit written comments within 30 days of publication in the Texas Register to Kevin Niemeyer by telephone at (512) 491-1366, by fax at (512) 491-1998, by e-mail at kevin.niemeyer@hhsc.state.tx.us, or postal mail: HHSC Rate Analysis-Hospital Services, Mail Code H-400, P.O. Box 85200, Austin, TX 78708-5200.

The Texas Department of Aging and Disability Services (DADS) issued a provider letter to Community Based Alternative (CBA) providers about the expansion of the STAR+PLUS Program.

To help CBA consumers transition to the STAR+PLUS waiver, DADS lays out some guidelines, including the following:

1. The CBA HCSSA is responsible for completing the annual reassessment activities for consumers, whose individual service plans (ISPs) end on 01/31/07 and 02/28/07.
2. For ISPs finalized before or on 01/31/07, HCSSAs will bill DADS for the reassessment activities, and DADS will reimburse HCSSAs.
3. For ISPs finalized on or after 2/1/07, HCSSAs must bill the HMO, not DADS, for reassessment activities, and the HMO will reimburse HCSSAs.
4. The CBA HCSSA must not initiate any reassessment activities for CBA consumers, whose ISPs end 3/31/07. Reassessments for ISPs that end 3/31/07 will be completed by the HMO staff.

For more information, you may download the letter here.

Although President George Bush reversed a proposed cut to physicians’ Medicare reimbursements late last year, the Medicare Payment Advisory Commission (MedPAC) will lobby Congress to increase reimbursements by about 1.7 percent in 2008. (Source)

Reimbursement will be decreased by 10 percent under the present payment system, according to MedPAC, and it will urge Congress to act now.

MedPAC will also recommend that Congress freeze 2008 reimbursement increases for long term care facilities like nursing homes. According to Alan Rosenbloom, president of the Alliance for Quality Nursing Home Care, such a move “would undermine the great strides skilled nursing homes have taken to improve the quality of care and provide a fair wage to hundreds of thousands of caregivers.”

The American Health Care Association’s Bruce Yarwood is also concerned about MedPAC’s recommendation, which he says is “one hundred percent contrary to the interests of our nation’s most vulnerable citizens dependent upon adequately-funded nursing homes for their care.”

You may download and read a PDF copy of MedPAC’s report, Impact of Changes in Medicare Payments for Part D Drugs.

Last week, the U.S. House of Representatives approved a bill that would allow the government to negotiate Medicare prescription drug prices. (Source)

If passed by the Senate and signed into law by the president, the Medicare Prescription Drug Price Negotiation Act of 2007 would nullify the part of Medicare Part D law that prohibits the government from negotiating drug prices. As expected, it was a party line vote, with mostly Democrats voting in favor of the bill. According to the Washington Post, President Bush said he will veto the bill if it passes in the Senate.

According to a report from the Centers of Medicare and Medicaid Services and the Congressional Budget Office, the new law would have a “negligible effect on federal spending since the Secretary would be unable to negotiate prices across the broad range of covered Part D drugs that are more favorable than those obtained by PDPs under current law.”

Lawmakers opposed to the legislation believe allowing competition in the prescription drug market is the best approach.

• Submission of the Hospice Election Form 3071 and Physician Certification of Terminal Illness Form 3074

The Texas Department of Aging and Disability Services (DADS) informed Medicaid hospice providers that it has updated its list of regional contacts for hospice election and certification forms to Community Services, Texas Medicaid and Healthcare Partnership, and Health and Human Services Commission Medicaid Eligibility staff.

For more information, download the letter and attached list of regional contacts here.

• Guidelines for Reporting Incidents

In a letter to skilled nursing facilities, DADS provided revised guidelines for reporting incidents to DADS. From the letter:

These revised guidelines supersede those dated October 3, 2006…Health and Safety Code §242.122 and 40 Texas Administrative Code (TAC) §19.602(a) require any facility staff member who has cause to believe that the physical or mental health or welfare of a resident has been or may be adversely affected by abuse, neglect, or exploitation caused by another person to report the abuse, neglect, or exploitation.

For more information, download the letter here.

• New Procedures for Permanency Planning in Nursing Facilities

DADS informed nursing facility providers that permanency planning is required to be completed every six months for any individual under the age of 22 in a nursing facility in Texas. The main goal of permanency planning is to reunite persons under 22 with their birth or alternative family. You may download the letter here.

• Changes to Toll-Free Announcements and Incident Voicemail Reporting System

DADS informed nursing, assisted living, and adult day care providers, and intermediate care facilities for persons with mental retardation or a related condition, and home and community support services agencies about changes to toll-free announcements and the incident voicemail reporting system. To read about the new announcement, download the letter here.

In mid-2004, the United States Court of Appeals for the Second Circuit became the first federal appellate court holding that the companionship services exemption under the federal Fair Labor Standards Act (“FLSA”) could not be used by home health agencies to avoid paying its home care attendants minimum wage and overtime pay. (Coke v Long Island Care at Home, Ltd., 376 F3d 118 (2d Cir 2004)). Citing a 2005 Wage and Hour Advisory Memorandum issued by the Department of Labor (DOL), the US Supreme Court remanded the Coke case back to the Second Circuit for reconsideration. The Second Circuit stuck to its original decision, and the home health agency at issue has asked the United States Supreme Court, again, to overturn that decision. On January 5, 2007, the Supreme Court agreed to hear the case.

Congress provided exemption from both minimum wage and overtime requirements of the FLSA for domestic service workers who provide companionship for the elderly and infirm. 29 U.S.C. § 213(a)(15). For nearly 30 years, the DOL has interpreted this section to apply to companionship employees who are employed by “third party” home health agencies other than the family or household actually using their services. Granted, the DOL has periodically proposed eliminating this exemption for third party employers but, following public comment, has invariably chosen not to do so.

If the Supreme Court upholds the Second Circuit’s decision, it will be a dramatic reversal in longstanding wage-and-hour practices making companionship services affordable for the elderly and infirm. The Second Circuit’s decision is in direct conflict with the Tenth Circuit, which has held that companion employees need not be employed directly by the family or household receiving services for the exemption to apply.

Regulations of the Wage and Hour Division (29 CFR § 552.1-552.110) establish the criteria that must be met before the companionship services exemption applies to an employee.

(1) The Services Provided Must Constitute “Companionship Services,” or “…those services which provide fellowship, care and protection for a person who because of advanced age or physical or mental infirmity, cannot care for his or her own needs. Such services may include household work related to the care of the aged or infirm person such as meal preparation, bed making, washing of clothes, and other similar services.”

(2) General Household Work May Not Exceed 20% Of the Total Weekly Hours Worked. Household work related to personal care, which would not constitute “general” household work, would include preparing meals, making beds, washing clothes or other related similar services such as washing dishes, sweeping the floor after meals or scrubbing the bathtub after a bath. Other housekeeping activities not related to the individual’s personal care, such as dusting furniture, vacuuming, washing floors and windows, or cleaning refrigerators and ovens, must be considered to be non-exempt ”general household work“ which is subject to the 20% time limitation.”

(3) Non-Trained Personnel (the exemption is not available for employees whose duties require the training of a registered nurse or a licensed practical nurse).

(4) Services must be provided in or about the private home of the person (that is, not group homes or assisted living facilities, according to the DOL).

(5) Joint Employment With the Client. The exercise of some supervision and control by the client over the employee providing the services can be sufficient to create the employment relationship for this purpose (e.g., the client’s involvement in choosing the employee who provides services, participation in scheduling, and participation in choosing the services to be performed).

The Coke decision is very significant for all home health agencies that rely on the FLSA’s companionship services exemption to exempt their employee’s from minimum wage and overtime pay. Directly applicable only in New York, Vermont and Connecticut, the Coke case creates a precedent that must be addressed by the Supreme Court. We will keep you advised of any ruling.

As proposed by the House of Representatives, minimum wage requirements would increase from the current standard of $5.15 to $7.25 in approximately three years. Introduced by Representative George Miller, the Fair Minimum Wage Act passed the House by 315-116 on January 10, 2007, and is expected to affect up to 13 million of America’s minimum wage workers.

As currently drafted, minimum wages would increase as follows:

• 60 days after enactment: The minimum wage will increase from the current $5.15 to $5.85
• One year after the first increase: The minimum wage will increase to $6.55
• One year after the second increase: The minimum wage will finally increase to $7.25

We will continue to keep you updated as the proposed statute evolves. You can find more details on the Act at the U.S. House of Representatives’ Committee on Education and Labor website: http://edlabor.house.gov/micro/minimumwage.shtml.

The Texas Health and Human Services Commission (HHSC) has proposed a new rule titled, “Internet Posting of Sanctions Imposed For Contractual Violations.” Among other things, the rule would outline HHSC’s authority to impose sanctions on Medicaid Managed Care Organization’s that do not comply with contractual terms. This information would be posted on HHSC’s web site.

Submit written comments to the following:

Gilbert Estrada, Policy Analyst
Medicaid/CHIP Division
Texas Health and Human Services Commission
P.O. Box 85200, MC-H600
Austin, Texas 78708-5200

For more information about the proposed rule and the public hearing, see the relevant section in the January 5 Texas Register.

In other updates, HHSC has proposed a section on health passport requirements for children in foster care. The passport, an electronic medical record, is intended to provide continuity of care for children served in the Department of Family & Protective Services.

For more information about the proposed rule, written commenting, and the public hearing, see the relevant section in the Texas Register.

Finally, HHSC has proposed a rule designed to eliminate the one-month gap in coverage for Supplemental Security Income. For more information about the proposed rule and written commenting, see the relevant section in the Texas Register.

The Board of Nurse Examiners has adopted amendments regarding Vocational and Profession Nursing Education.

The amendments incorporate guidelines for faculty waivers into the nursing education rules, eliminating the need to issue waivers. For more information, see the relevant section in the January 5 Texas Register.