Relief Provisions Not Enough to Mitigate Damage of 80/20 Policy, Providers Say

 McKnight’s Home Care / By Adam Healy

Though newly finalized changes to the Medicaid Access Rule attempted to soften the blow of its controversial 80/20 provision, home care providers remained vehemently opposed to the Centers for Medicare & Medicaid Services’ strict new spending mandate.

“Overall, while there are many positive provisions within the final rule as well as mitigations to make the payment adequacy provision less onerous, NAHC remains extremely concerned about the negative consequences of the pass-through policy,”  the National Association for Home Care & Hospice said in an analysis for NAHC members released after the rule was published. 

Among the mitigating factors in the final rule: CMS extended the time frame for when the 80/20 provision will take effect to six years from four years. The agency also is requiring states to review their Medicaid rates to ensure access. And it is mandating that states report how long it takes beneficiaries to access home- and community-based services, Dan Tsai, deputy administrator and director of Center for Medicaid and CHIP services at CMS, said in a question-and-answer session at a press conference Tuesday. 

“We ensured that there is a period of reporting for every state and provider so that there’s transparency around where every provider is, and there are a whole suite of provisions in the rule that also get at whether the actual rates that the state Medicaid agency is paying for the service is sufficient,” Tsai said in response to a question by a staff writer at McKnight’s Home Care Daily Pulse. “We do that both by requiring a set of … processes in which the states need to review their rates with a whole group of individuals, and whether those rates are sufficient to ensure access.”

Taken together, all of these changes are “very important in making sure the rate itself is sufficient” to support home care agencies and their workers, Tsai said.

CMS also is offering providers relief from the 80/20 provision by modifying the calculation by which certain expenses are factored into the 80% threshold, expanding the types of services that fit under the 80%, and including optional “hardship exemptions” for smaller providers, the NAHC report said. 

Still, these changes will likely not be enough to mitigate the damage that the 80/20 provision is expected to cause, according to NAHC and other providers.

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CMS Delays Implementation of the Hospice Certifying Physician Enrollment Requirement

NHPCO

The The May 1 go-live date for the Medicare hospice certifying physician enrollment requirement is delayed until June 3. The Centers for Medicare & Medicaid Services (CMS) notified NHPCO and the National Association for Home Care & Hospice (NAHC) today of this decision and will be making a public announcement soon. This change follows both organizations’ continued engagement with CMS to ensure seamless and appropriate implementation of this requirement.

The hospice physician enrollment requirement was originally set to begin on May 1, as finalized in the Fiscal Year (FY) 2024 Hospice Wage Index final rule. Under this requirement, a physician must be Medicare enrolled or validly opted-out in order to certify a patient’s terminal illness under the Medicare hospice benefit. As previously reported, the implementation of this requirement caused confusion and concern within the hospice community. NAHC and NHPCO have been working together to address the issues and unintended consequences of the requirement, and met with CMS this week to relay these concerns and request the following:

1. Expedient and clear guidance
2. Flexibility in claim processing
3. Part B MAC physician enrollment processing guidance

We thank CMS for its engagement on the issues and the resulting delay in implementation. We expect to see clarified instructions for claims processing and guidance on physician enrollment application processing. We will provide more information as it becomes available. Until then, hospices should continue to implement procedures to ensure that the certifying physician(s) is enrolled in Medicare or validly opted-out.

Breaking: DOL Final Overtime Rule Increases Minimum Salary Threshold for Exemption

The National Law Review / Ny Kelly K. Ballentine of ArentFox Schiff LLP

Effective July 1, employers must pay employees a salary of at least $844 per week (equivalent to $43,888 per year) to qualify for the Executive, Administrative, Professional, Outside Sales, and Computer Employees exemptions from minimum wage and overtime under the Fair Labor Standards Act (FLSA).

As we have previously reported, this change comes as part of the US Department of Labor’s (DOL) highly anticipated final rule on standard salary levels, which it announced on April 23. The final rule also increases the Highly Compensated Employee exemption total annual compensation threshold to a minimum of $132,964 per year, including at least $844 per week paid on a salary or fee basis, and further includes a mechanism providing for future updates to these earnings thresholds to reflect current earnings data.

Looking to next year, employers should be prepared for another increase on January 1, 2025, which raises the standard salary level to $1,128 per week (equivalent to $58,656 per year) and the Highly Compensated Employee total annual compensation threshold to $151,164 per year, including at least $1,128 per week paid on salary or fee basis. Beginning on July 1, 2027, and every three years thereafter, the final rule empowers the DOL to make future updates to the pay thresholds to reflect current earnings data.

For context, the current rule (effective before July 1) requires a salary minimum of $684 per week (equivalent to $35,568 per year) for the Executive, Administrative, Professional, Outside Sales, and Computer Employees exemptions, and $107,432 per year for the Highly Compensated Employee exemption. Employers are reminded that an employee must meet the minimum salary threshold under both the FLSA and any state statutory scheme to qualify for exemption.

Companies should evaluate their current compensation practices and employee classifications to avoid violations of the FLSA’s minimum wage and overtime regulations and associated penalties

FTC Votes to Ban Noncompete Agreements

The Hill / By Taylor Giorno

The Federal Trade Commission (FTC) voted 3-2 on Tuesday to ban noncompete agreements that prevent tens of millions of employees from working for competitors or starting a competing business after they leave a job.

From fast food workers to CEOs, the FTC estimates 18 percent of the U.S. workforce is covered by noncompete agreements — about 30 million people.

The final rule would ban new noncompete agreements for all workers and require companies to let current and past employees know they won’t enforce them. Companies will also have to throw out existing noncompete agreements for most employees, although in a change from the original proposal, the agreements may remain in effect for senior executives.

“It is so profoundly unfree and unfair for people to be stuck in jobs they want to leave, not because they lacked better alternatives, but because noncompetes preclude another firm from fairly competing for their labor, requiring workers instead to leave their industries or their homes to make ends,” FTC Commissioner Rebecca Slaughter (D) said in prepared remarks.

The new rule is slated to go into effect 120 days after it’s published in the Federal Register. But its future is uncertain, as pro-business groups opposing the rule are expected to take legal action to block its implementation.

Business groups say noncompete agreements are critical for protecting proprietary information and intellectual property, although the rule would not ban other methods for protecting that information, including nondisclosure and confidentiality agreements. They also question the agency’s authority to issue the blanket, retroactive ban.

Congress has not given the agency explicit authority to ban noncompetes, although there have been several bipartisan bills introduced to reform noncompete agreements, including the Workforce Mobility Act sponsored by Sens. Chris Murphy (D-Conn.), Todd Young (R-Ind.), Tim Kaine (D-Va.) and Kevin Cramer (R-N.D.), and the Freedom to Compete Act sponsored by Sens. Marco Rubio (R-Fla.) and Maggie Hassan (D-N.H.).

The U.S. Chamber of Commerce, the largest pro-business lobbying group in the country, has said it will sue to block the rule.

Chamber President and CEO Suzanne Clark called the FTC vote to ban noncompetes “a blatant power grab that will undermine American businesses’ ability to remain competitive.”

“This decision sets a dangerous precedent for government micromanagement of business and can harm employers, workers, and our economy,” Clark said. “The Chamber will sue the FTC to block this unnecessary and unlawful rule and put other agencies on notice that such overreach will not go unchecked.”…

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