FTC Proposed Non-Compete Ban Ruling: What Home Care Agencies Need to Know – A Q&A with Littler
Home Care Association of Colorado
The Federal Trade Commission’s proposed ban on non-compete agreements could have significant effects on home care. HCAOA has been watching this issue closely and will submit extensive comments to the Commission later today. The full comment and analysis of HCAOA’s response will be shared next week in the Home Care Insider.
Following a webinar Littler held last week, HCAOA approached the law firm to help unpack the issues surrounding the proposed ban for home care providers. HCAOA thanks Littler attorneys Jim Paretti, Michael Lotito, Joshua Vaughn and their team for responding to our questions.
HCAOA – Please share the background and details of this issue.
Littler - In January of this year, the Federal Trade Commission proposed a regulation that would effectively ban all non-competition agreements between employers and employees. The proposed ban applies across-the-board, whether the worker is a lower-wage front line employee, or a senior executive, and irrespective of whether the employee is paid additional compensation for entering into a non-compete.
The only exception the rule would allow is a non-compete agreement in connection with the sale of a business, so long as the individual who is subject to the non-compete owns at least 25% of the business entity. The ban would apply to future non-compete agreements, but also require employers to retroactively rescind existing non-competes and inform employees that they are no longer bound by them.
HCAOA - The FTC has released a Notice of Proposed Rulemaking (NPRM) that seeks to ban employers from imposing or enforcing non-compete clauses on workers. What has changed since the proposed rule was released?
Littler - Little has changed since the proposed rule was released—yet. The 90-day public comment period on the rule is scheduled to close on April 19, 2023; as of this writing, the agency has already received more than 22,500 comments on its proposal. HCAOA has been working with Littler on a comment urging the Commission to recognize the unique nature of home care and ensure that any final rule addresses these concerns.
HCAOA - How will this impact home care agencies and their employees?
Littler - Notably, the proposed rule goes beyond traditional non-competes and would sweep under its coverage any provision that the FTC determines functions as a non-compete. The FTC advises that while non-disclosure agreements and customer non-solicit agreements generally do not prevent a worker from seeking or accepting employment, if they are too broad, they would be covered within its definition of a non-compete clause.
The proposed rule cites two examples of de facto non-compete clauses: (1) a non-disclosure agreement “that is written so broadly that it effectively precludes the worker from working in the same field” when they leave employment with their current employer; and (2) a contractual term that requires a worker to pay back money spent for training costs if their employment terminates within a certain period, if the “required payment is not reasonably related to the costs the employer incurred for training the worker.”
The proposal makes clear that these two examples are illustrative only, and that under its “functional analysis” many other clauses that could be viewed as limiting an employee’s ability to change jobs may be prohibited as de facto non-competes.
It is not clear whether and how these final rules will impact certain agreements that are common in the home care industry.
HCAOA - What else should home care agency owners know? Should they take any action at this time?
Littler - The FTC will take time to review the comments. We currently expect the FTC to publish a final regulation either before the end of 2023 or in early 2024. A final rule may be almost identical to that which was proposed, or it may differ in signification respects (e.g., its scope or application). It is almost certain that upon issuance, the final rule will be subject to legal challenge in federal court.
Until a final rule is published (and any legal challenges resolved), employers may continue to use non-compete agreements and no changes are needed. However, be mindful that at some point in the future these agreements might be voided.
In the interim we recommend that employers continue to monitor developments so as to know when a final rule is issued, any changes between the proposed and final rule, and when any final rule is scheduled to become effective.
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Exciting New VR Opportunity for Home Health, Hospice & Personal Care Businesses!
Jobs for the Future (JFF) is excited to present a new opportunity for home health, hospice and personal care agencies to gain access to Virtual Reality (VR) to train employees and grow their business!
Join us for an online demo of the caregiver training on Wednesday, May 3rd at 1:00pm MT to learn more about what VR can do for your business and ask questions!
VR training solutions have been proven to increase employee retention, increase employee confidence, decrease business training time, increase business productivity, and decrease business training costs.
JFF, a national 501c3 organization, will be conducting a pilot with agencies with approximately 50 or more employees throughout the country this summer. ALL COSTS including VR headsets, software licensing, training and support, will be covered by JFF (VR headsets are yours to keep!).
The pilot will focus on training employees in two areas:
- Caregiver skills for aging populations. Building empathy and managing interactions with people who have common ailments such as vision or hearing loss, dementia, and more.
- Core skills, i.e. communicating succinctly, adaptability, and more, with the opportunity to extend into more industry relevant core skills and other use cases.
Click here to learn more about the pilot & whether your business is a good fit.
Please reach out to Carol Azeez at [email protected] to RSVP to the demo or with any questions about the pilot. Though you can just click the link below to join, your RSVP is requested so that we know who to plan for.
Join the Webinar |
Submitting Proper Documentation in Response to Additional Documentation Requests (ADRs) for Hospice Claims
CGS Administrators
Occasionally, a claim is selected for medical review and your Medicare Administrative Contractor (MAC), CGS, will request additional documentation from you to ensure payment is appropriate. If this happens, the medical review department at CGS will issue you an ADR with information it needs to continue processing the claim.
The information and tips below can help you provide a timely response, potentially avoiding claims denials.
Tips for Responding to an ADR
So how can you be sure to respond to ADRs on time, every time? Here are a few helpful tips.
• Assign an ADR lead. Choose an administrative team member or nurse to lead this task, which should include watching for new ADRs, monitoring the status of existing ADRs, and ensuring documentation is submitted in a timely manner.
• Check for ADRs. Work with the ADR lead to create an internal process to check on ADRs at least once a week. They can check myCGS or Fiscal Intermediary Standard System (FISS) Option 12 Claim Inquiry.
• Note the due date. Mark down the due date listed in the ADR, or use this calculator to ensure CGS receives your response on time. ADRs are due within 45 calendar days of the request.
• Double-check the documentation. Ensure that documentation is correct for the patient and claim by attaching a copy of the ADR letter (or FISS Page 07) as the first page.
• Organize documents if you are submitting more than one ADR. For multiple medical review ADR requests, clearly separate the documentation for each claim.
What You Need to Respond to an ADR
To respond to an ADR, you’ll need to share things like physician’s office and hospital records, admission records, plans of care, and other medical records. Visit CGS’s website for a full list of required items and a helpful documentation checklist to help you make sure nothing is missing.
View documentation checklist https://www.cgsmedicare.com/hhh/medreview/adr_process.html#C
If you have questions about the ADR process, please call the CGS Provider Contact Center at 1-877-299-4500, Option 1. |
The Value of Hospice: NEW Research and Advocacy Resources!
Hospice Action Network
New research shows that, in just one year, hospice care resulted in billions of savings to Medicare. NHPCO in partnership with NAHC worked with NORC at the University of Chicago on this landmark study. This research could not come at a more critical time to demonstrate the value of hospice to policymakers and communities. This data shows that increasing, not cutting, investments in hospice will result in greater savings and improved quality of care. The data also shows that hospice provides multiple benefits to patient and family wellbeing.
Key findings from the study include:
• For patients who received hospice care in 2019, Medicare spending was $3.5 billion less than similar individuals who did not use hospice care.
• On average, earlier enrollment in hospice (lengths of 11 days or more) resulted in Medicare savings..
• Even for patients who spent six months or more in hospice, Medicare spending was on average 11% lower compared to patients who did not use hospice.
• At any length of stay, hospice care benefits patients, family members, and caregivers, including increased satisfaction and quality of life, improved pain control, reduced physical and emotional distress, and reduced prolonged grief.
What this means for hospice policy
• Hospice care saves money for taxpayers and improves end-of-life care for millions of Americans. Yet roughly half of Medicare patients never use hospice, and many who do are only in it for a short period of time.
• We need policies that enable more patients to access hospice when the time is right. Longer lengths of stay, when appropriate, will provide greater benefits to patients and the Medicare system.
• We must oppose policies that would cut hospice payments. Such policies would have negative consequences for quality of care, access to care, and taxpayer dollars.
Learn more
• NHPCO's press release about the study
• The study's executive summary (2 pages)
• NHPCO and NAHC Webinar on the study - to view, simply register and you will be taken to the webinar recording (1 hour )
Share these resources on your social networks with the hashtag #HospiceWorks!
Call on others to Sign Up to be a hospice advocate and join our cause today!
Thank you for being an advocate for hospice and palliative care patients, families, and providers. By supporting our efforts, you are helping policymakers and communities understand the value of hospice and palliative care. |
For the First Time, HHS Is Making Ownership Data for All Medicare-Certified Hospice and Home Health Agencies Publicly Available
The Biden-Harris Administration has made promoting competition and protecting consumers a top priority. Today, in support of the President’s Executive Order on promoting competition and the Administration’s commitment to transparency, the U.S. Department of Health and Human Services (HHS) is releasing ownership data for all Medicare-certified hospice and home health agencies. For the first time, anyone can now review detailed information on the ownership of more than 6,000 hospices and 11,000 home health agencies certified to participate in the Medicare program on the Centers for Medicare & Medicaid Services (CMS) website.
“It’s plain and simple: families deserve transparency when making decisions about hospice and home health care for their loved ones,” said HHS Secretary Xavier Becerra. “President Biden has called for unprecedented action to increase transparency – and we are making more data publicly available than ever before. Shining a light on ownership data is good for families, good for researchers, and good for enforcement agencies. We will continue delivering on the President’s directive to promote competition and protect consumers.”
Today’s announcement builds on the Department’s historic releases of data and unprecedented efforts to increase transparency:
- In April 2022, CMS released data publicly on mergers, acquisitions, consolidations, and changes of ownership from 2016-2022 for hospitals and nursing homes enrolled in Medicare.
- In September, CMS released additional data publicly on the ownership of approximately 15,000 nursing homes certified as a Medicare Skilled Nursing Facility, regardless of any change in ownership, including providing more detailed information about organizational owners of nursing homes.
- In December, CMS released detailed information on the ownership of more than 7,000 hospitals certified to participate in the Medicare program.
“Transitioning to hospice care is often an emotionally overwhelming time for many families,” CMS Administrator Chiquita Brooks-LaSure said. “Making this data public increases transparency, giving families the information needed to help them identify the best care for their loved one. Providing information is a hallmark of this administration’s efforts to improve care because we understand that having good information allows people to make the best choices possible.”
The information posted today includes detailed information on the ownership of more than 6,000 hospices and 11,000 home health agencies certified to participate in the Medicare program, regardless of any change in ownership. The data elements include: enrollment information such as organization name, type, practice location addresses, National Provider Identifier (NPI), CMS Certification Number (CCN); detailed information about each owner such as whether it is an organization or an individual and whether it is a direct owner or indirect owner (that is, there is at least one subsidiary between it and the provider); and a numerical associate ID for each owner to enable linkage to the enrollment file. Additional files that include data on mergers, acquisitions, consolidations, and changes of ownership since 2016 for hospices and home health agencies enrolled in Medicare are also being made available as part of this release.
Making ownership information transparent benefits researchers and enforcement agencies by allowing them to identify common owners that have had histories of poor performance, analyze data and trends on how market consolidation impacts consumers with increased costs without necessarily improving quality of care, and evaluate the relationships between ownership and changes in health care costs and outcomes. Transparent ownership data benefits the public by assisting patients, and their loved ones, in making more informed decisions about care. HHS plans to analyze these data to identify ways to inform policy approaches that can improve competition in health care, a key priority for the Biden-Harris administration.
Review hospice enrollments and HHA enrollments on data.cms.gov.
CMS expects to release updated hospice and home health ownership data on a quarterly basis in a searchable format on data.cms.gov, in addition to a flat Excel file available for download to make it easier for researchers to use. |
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