Private Duty Ezine
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In the January Issue
Mergers & Acquisitions
Private duty agency transactions continue to see a big boost
The number of mergers and acquisitions in the private duty industry hit record numbers in 2016 and 2017.
Consider that private duty mergers and acquisitions never topped 21 in a five-year stretch ending in 2015. But the market skyrocketed to 49 transactions in 2016, and was on pace for another year of elevated activity in 2017, according to data from Pittsburgh-based mergers and acquisitions advisory firm The Braff Group. There were 28 private duty transactions through the third quarter of 2017.
There’s no reason 2018 won’t be a strong year for private duty transactions, as the industry is becoming increasingly important within the continuum of care, says Jack Eskenazi Jr., managing partner of Healthcare Advisory Partners, based in Soquel, Calif.
“This reflects growing sentiment that the deployment of longer-term, paraprofessional services may prove to be a crucial component to managing the overall health care spend of post-surgical and/or chronically ill patients,” says Dexter Braff, president of Pittsburgh-based mergers and acquisitions advisory firm The Braff Group.
“With growth comes a higher degree of regulation and licensure, even in private care — which translates to higher costs,” Eskenazi says. “These regulatory demands mean small private duty agencies are looking to consolidate to handle the burden.”
Deals have become more strategic
Eskenazi adds that there is a strong interest from private equity investors.
“There’s a real separation between your mom and pops just sending an aide and larger agencies that partner with medical providers and provide a greater array of services,” Eskenazi says.
The latter, he contends, will do better in the long run.
“The dominant consolidation strategy today is not to amass a large regional or national footprint of providers,” Braff says. “Rather, under emerging population-based or condition-specific global payment models, companies are now being rewarded for coordinating care.”
Buyers in 2018 will look to have “a continuum of companies, from primary to acute to post-acute providers, to efficiently handle an episode of care,” he says. “What this means is that buyers of either [Medicare] certified or private duty agencies are more likely to be local hospital systems, skilled nursing providers, large physician groups and the like, instead of huge home health agency companies.”
Mark Kulik, managing director at The Braff Group, believes that the future providers will not be split by payer types, but will provide any care the patient needs, private or Medicare-certified.
Eskenazi adds that the Affordable Care Act, with value-, risk-, and outcome-based compensation models, is the driving force for a pressure on efficiency.
“Combine that with the ever-expanding market and demand for services — those are the fundamentals shaping the market,” he says.
Home health and private duty are in a better situation than just about any other health care setting, even with regulatory burden, Eskenazi says. That’s why these businesses are and continue to be in high demand, he adds.
How to become attractive to buyers
Get your agency in compliance if it isn’t right now. Other factors might determine if your agency sells high or low, but compliance is the factor that may determine if you sell at all, Eskenazi says.
Kulik agrees. “If I had to point to one significant change in M&A today, I’d point to due diligence and the buyer’s insistence on compliance across the board. They’re not looking to buy fixer-uppers. This includes all compliance, federal and state, and in all areas. I had a deal almost derail because the 401k program wasn’t compliant.”
- Develop a specialty in a particular area of care. And build relationships with doctors who specialize in this area. This way, a large hospital might have better reason to send particular patients to your agency over their usual — or even facility-owned — agency, Eskenazi says.
— Tami Swartz (firstname.lastname@example.org)
Vendor’s disposal of equipment can expose PHI, create PR nightmare
Be careful when identifying third-party vendors to dispose of equipment that may contain patient protected health information (PHI).
If you don’t properly vet a vendor, you may be more likely to suffer breach-related headaches, says attorney Tatiana Melnik, health care and technology attorney at Melnik Legal in Tampa, Fla.
A doctor and her employer, Grand Rapids, Mich.-based Spectrum Health System, learned the hard way the kinds of problems that are possible if use a vendor to dispose of equipment. Spectrum decommissioned a combined printer and fax machine and gave it to a vendor to delete data and resell or junk the machine.
The vendor resold it. When the new owner tried to print confirmation of a sent fax, the new owner discovered the PHI of more than 20 patients in the machine’s memory. It included diagnoses, lab results, home addresses, insurance information, and dependents’ names and dates of birth.
To make matters worse, the owner alerted a local news station, which in turn contacted patients whose PHI was exposed.
The story ran in October 2017 on the local news and because the station posted it on its website, anyone who searches Spectrum Health System may find the story. Spectrum and the physician already have suffered from negative publicity, with one patient whose data was exposed stating she won’t return.
This isn’t the first time a health care provider has had challenges with proper disposal of technology containing PHI.
In 2013, New York-based Affinity Health Plan reached a $1.2 million settlement with HHS. An HHS Office for Civil Rights (OCR) investigation determined “Affinity impermissibly disclosed the protected health information of up to 344,579 individuals when it returned multiple photocopiers to a leasing agent without erasing the data contained on the copier hard drives,” HHS’ website states.
“It’s your PHI,” warns attorney Michael Kline of Fox Rothchild in Princeton, N.J. “There are risks that don’t necessarily end and problems you still have to be accountable for when the equipment is taken away.”
Vendor disposal is a known risk
Spectrum says that it followed its protocol for equipment disposal and even received certification from the vendor that the PHI had been removed.
However, OCR still could investigate the breach. OCR has flagged improper handling and disposal of PHI as one of the most common HIPAA violations. It is a frequent subject of enforcement. State officials also have authority to enforce HIPAA and state privacy law.
HIPAA requires that providers take “reasonable safeguards” when disposing of equipment containing PHI.
The law doesn’t dictate a particular method, but data cannot be retrievable and needs to be unusable, unreadable or indecipherable. OCR suggests that PHI on electronic media be cleared, overwritten, purged or destroyed in accordance with standards from the National Institute of Standards and Technology (NIST).
“I would imagine that most home health agencies don’t have the resources onsite to be able to handle the destruction in a way that is sufficient to qualify for the standards,” Melnik says.
Following OCR’s recommendations lowers the risk of HIPAA noncompliance for improper disposal. It also enables providers to avoid reporting a breach should the PHI be improperly disposed since the PHI is then considered secure. Only unsecured PHI that has been exposed or compromised needs to be reported to OCR.
Faulty record disposal often exposes agencies to liability even when the breach was the vendor’s fault.
Find HIPAA-compliant disposal vendors
When seeking a vendor, it’s important to ask for references from other health care providers and to probe the company about its HIPAA compliance, warn Melnik, Kline and attorney Elizabeth Litten of Fox Rothschild in Princeton, N.J.
Here are questions to ask a prospective vendor before you hand over your agency’s equipment:
- What experience does your company have with disposal of PHI? Determine if the vendor is member of the National Association for Information Destruction, Melnik recommends.
- What steps does your company take to secure and delete data? Identify what the company’s process is for removing hard drives and eliminating data, Melnik says.
- Does your company follow NIST’s requirements for deleting data?
- Will your company certify compliance when it disposes of PHI and provide evidence of the data purging? You should receive a certification of destruction that attests that the technology identified has been destroyed, Melnik says. (See certificate)
- Does your company have data breach insurance?
- Will your company sign a business associate agreement? The agreement should state the company will comply with HIPAA requirements and use up-to-date standards and technology in the disposal of PHI. Don’t hire a technology disposal vendor that won’t sign such an agreement, Melnik says.
— Marla Durben Hirsch (email@example.com) and Josh Poltilove (firstname.lastname@example.org)
Related links: Read NIST guidance on sanitation of media at http://bit.ly/1BaAbyg. Learn more about digital copier data security at http://bit.ly/2CXXe7o. View the HHS Office for Civil Rights wall of shame at http://bit.ly/2B2JASu.
In the December Issue
Implement Electronic Visit Verification to comply with 21st Century Cures Act
By Ken Accardi
Home care agencies offering personal care, homemaking, respite and other non-medical services funded by Medicaid will soon be required to implement Electronic Visit Verification (EVV). Agencies should take note of available options and best practices to stay in compliance and avoid penalties.
This change primarily impacts Medicaid for now, but will be coming later for Medicare and likely will be required for private duty agencies if they get institutional customers, like hospitals.
EVV for Medicaid-funded home care is mandated by the 21st Century Cures Act, which passed through the U.S. Congress with strong bipartisan support and was signed into law in December 2016.
Agencies providing personal care services that don’t comply will face a federal medical assistance percentage reduction of 0.25% starting in 2019 and up to 1% after 2023. Payment reductions for Medicaid-funded home health will begin in 2023. It’s crucial to implement some form of EVV to avoid these penalties.
EVV systems range in price from $8 to $12 per client, per month. That cost is generally well below the 1% penalty, especially when skilled care is provided.
The implication of these EVV mandates is that agencies need to use technology to prove caregivers performed home care visits. This legislation was crafted because the home care industry has a bad historical reputation for fraudulent activity, where some bad apples submitted claims for work that wasn’t actually done. Congress has sent a strong message that if you’re going to charge for home care work, you have to do the work and prove that you did it.
Implementing EVV typically has the added benefit of increasing speed for processing billing and payroll.
It also has helped agencies understand the exact amount of time that caregivers spend at patients’ homes. Most Medicaid programs have agencies bill personal care visits in 15-minute units. Some programs only pay for completed 15-minute units, while others employ rounding rules.
Understand available EVV options
EVV can be achieved in several ways, including through use of telephony, a mobile app with GPS, a “fob” in the home, a kiosk or with a voice signature.
While costs average roughly $10 per month per active client, additional charges may include the one-time cost of a fob, which is about $15, or a transaction fee for voice verifications.
When kiosks are mandated, they are often provided by a program that includes the hardware, such as a $100 Android tablet, a data plan for about $10 per month and the logistics costs for deploying and servicing the devices.
Because it’s inexpensive, voice telephony is still the most prevalent solution in non-medical home care. Many caregivers have not had smart phones until recently, and even those that do are reluctant to use their data plans. Most agencies don’t have the budget to provide phones to caregivers.
Even so, more and more agencies are moving over to mobile apps.
The mobile option is the second and fastest-growing EVV solution. A mobile app compares the GPS location of the phone at the time of clock in and clock out with the with the GPS location where the staff member is supposed to be.
The fob option is often considered a necessary evil and is only deployed when the caregiver doesn’t have a smart phone or the client doesn’t have a home phone or doesn’t want the phone used.
The fob is a fixed object placed in the client’s home and physically connected in some way, for example, to a drawer-pull in the kitchen.
Customers from Ankota, a home health care technology company, generally use fobs in situations when clients don’t have a home phone and caregivers don’t use a smart phone.
Each fob creates a new, unique six-digit code every minute which are used to track when the caregiver arrives and leaves. This code, combined with a unique fob crypto code, allow the software to determine the caregiver’s arrival and departure times.
The kiosk concept is good in theory, but requires the purchase of a tablet and an internet plan for each client and the overhead associated with that method can add up quickly.
Implement these EVV best practices
- Explore options through software vendors. Your vendor may be able to provide EVV capability for your agency. In non-medical home care, providing EVV capability is one of the major functions your software should offer. So check in with your vendor about their EVV offerings.
Remember that reported times will no longer be perfect. When you’re not using EVV, your time sheets will generally be “perfect.” A caregiver’s visit scheduled from 8 a.m. to 10 a.m. will be recorded as arrived exactly at 8 a.m. and departed exactly at 10 a.m. When EVV is added, these times will no longer be perfect. For example, caregivers might arrive at 7:56 a.m. and leave at 9:53 a.m.
Each agency must create its own policy for how to charge clients when time sheets don’t precisely match the time promised a client. For example, some agencies will charge less if they’re under the time promise, but won’t charge for more than the agreed upon duration.
Make usability and training a priority. In a typical organization, 20% of your workers will embrace EVV right away because clocking in and out in real time is more convenient than filling out a paper time sheet, getting it signed and returning it to the office on deadline. About 60% of employees will be just fine with it, but the last 20% will be unhappy about it and come along kicking and screaming.
The best thing you can do to prevent this is to make sure that the EVV system is easy to use and that you provide training and hand-holding in the early days.
- Be prepared for caregiver mistakes. In the early days of your implementation, caregivers will forget to clock in or clock out or make other mistakes. When mistakes are made, it is likely that a timesheet signed by the client will be required.
About the author: Paul Hirsch has been an attorney at Pearson & Bernard, PSC in Edgewood, Ky., since 2012. He focuses on working with home health and hospice providers regarding State/Federal licensing and compliance; contract review and drafting; and the development and implementation of comprehensive policies and procedures of all types.
Improve client outcomes and satisfaction with nutrition, culinary training
Training caregivers to address nutrition and improve their own cooking skills can help with both client outcomes and satisfaction.
Several years ago, Angel Corps co-owner Dorian Maples realized the agency had a problem with its meal preparation services.
“We were getting consistent complaints from our clients that our staff didn’t know how to cook,” Maples says.
Angel Corps is not alone. A 2013 article from Home Care Pulse in Rexburg, Idaho, stated that the fifth-most common complaint from clients involved a lack of caregiver training. Clients were upset when caregivers couldn’t perform basic cooking and cleaning requests.
To remedy this issue at Angel Corps, the non-medical home care agency based in Fort Wayne, Ind., started requiring caregivers take cooking classes. Since putting this practice in place, the agency’s cooking complaints have dropped to zero.
Angel Corps worked with Caregivers Kitchen, in Muncie, Ind., for its training program. Now every caregiver is required to take a basic culinary class through Caregivers Kitchen.
The course covers cooking safety and things like how to cook an egg, how to prepare hash browns and how to make coffee.
It has been a significant investment on the agency’s part, but Maples feels the results justify the expenditure.
“It not only improves culinary skills in our client homes it also improves our staff’s home life, so we’re enriching both clients and staff,” Maples says.
Caregivers Kitchen offers both online and in-person programs, according to Chef Beth Scholer, CC, CDM, CFPP and CEO of Caregivers Kitchen. Individual online courses range in price from $15 for “Principles of Cooking” to as much as $79 for “Cooking for Chronic Conditions.”
There also are online subscriptions starting at $39 a month, and the company offers hybrid training that incorporates a combination of online and in-person cooking classes. These hybrid trainings vary in cost based on class size.
After caregivers graduate from the basic class, the agency gives them each a cooking themed goodie bag that includes kitchen items they can use in clients’ homes.
The course has been so popular with clients and caregivers that Angel Corps enlisted Caregivers Kitchen to train staff in additional short classes on diabetic cooking, food allergies and budget-friendly meals.
Digest the benefits of proper nutrition
Cooking and nutrition training not only enables caregivers to provide clients with better tasting food, but also with meals that are better for them.
“Caregivers need to understand how to take care of these more chronic and fragile older clients,” Scholer says. “Most don’t understand the link between the food and disease management.”
For instance, COPD is a common chronic condition in elderly clients and can be costly to manage from a health care system perspective. If a caregiver understands nutrition, they can make sure the client receives enough protein for healing, Scholer says.
Clients who have the proper nourishment recover faster and have a greater chance of not developing wounds or infections, says Dea Kent, director of quality assurance for Indianapolis-based Community Health Network.
If clients aren’t eating or drinking, there’s no protein entering their bodies.
“If I’m fragile nutritionally and fragile because of chronic condition, my chance of infection goes up,” Kent says. “Germs look for opportunities. And I become a huge opportunity when I’m chronically ill.”
Take steps to improve meals, nutrition
- Personalize the process. Actively listen to patients. Ask questions about the kinds of foods they enjoy and don’t enjoy eating, and talk with them and about how to consume more calories, says Anthony Wind, a registered dietician and director of content with Savor Health in New York City.
Understand differences in expectations and cultures. Some clients may expect dinner to be a plated meal at the table, while others may expect to eat in front of the television, Scholer says.
Be aware of differences in generation or culture. It’s important for caregivers to understand and incorporate those customs into their care.
Agencies can use a questionnaire from Caregivers Kitchen to help caregivers capture client preferences about meals. (See related tool.)
Tailor meals to diagnosis. There are simple, practical ways to improve the meal experience for clients based on certain diagnoses.
Serve small portions to clients with Alzheimer’s or dementia, Scholer recommends.
When a caregiver places a large amount of different foods in front of a client with dementia, the client may become overwhelmed and not eat at all. By serving small portions of one thing at a time, you eliminate those confusing choices.
Using brightly colored dishes also can help with dementia clients, because it makes food easier to distinguish.
Serving white mashed potatoes on a white plate can be confusing for these clients.
For patients with COPD, something as simple as having the client eat at the table rather than in bed may make breathing easier and provide a better meal experience, Scholer says.
- Educate the patient’s loved one about proper nutrition. It’s important to get buy-in from anyone who cooks for the patient, Wind says.
Consider whether patients need a liquid nutritional supplement. Ensure is one example of a drink patients might consume that would help, Kent says.
Patients also could get protein supplements, Kent says. Food you could sprinkle protein powder in: Mashed potatoes, pancakes and milkshakes. — Kirsten Dize (email@example.com)
In the November Issue
Be mindful when communicating with caregivers about possible registry disclosure
Efforts to potentially rekindle a bill recently vetoed in California and similar legislation that recently passed in Massachusetts could indicate a growing push to disclose home care aide registry contact information to third parties, including labor unions.
A law that allows personal contact information of home care aides to be shared with unions or the public could serve as a disincentive to enter that line of work, contends Phil Bongiorno, executive director of the Home Care Association of America (HCAOA) in Washington D.C.
And in an industry struggling to find enough staff to support the growing need, such alienation isn’t something to take lightly, Bongiorno adds.
Although home care agencies can oppose this kind of legislation, they should be careful about how they speak to employees about it, says attorney Joseph Maddaloni Jr., partner with Schenck, Price, Smith & King LLP in Florham Park, N.J.
Employers could be in violation of federal law if they’re found to have interfered with the organization of unions or to have discriminated against employees interested in participating in a union, Maddaloni says.
Background on aide registry legislation
In October, California Gov. Edmund Brown Jr. vetoed a bill that would have made it possible for a labor organization to request and receive the names, home phone numbers and cell phone numbers of aides on the state’s existing registry.
Although Brown vetoed the bill, there’s a strong chance it will come up again in California in the future, Bongiorno says.
California’s registry is designed for clients and families to make sure home care aides have completed training and a criminal background check.
While the vetoed legislation had incorporated an opt-out provision that would have prevented aide information from being disclosed to third parties, industry advocates including HCAOA remained concerned about privacy.
“The better approach would be to allow the worker to opt in instead of opt out,” Maddaloni says.
The risk with opting out is if caregivers don’t receive the notice or respond in time, they will be included and their private information will be handed over to a third party requesting it.
In Massachusetts, meanwhile, there are several versions of legislation in play that would create a registry and potentially share information with a third party. Industry advocates are pushing for an opt-out provision (as a compromise) to be added.
One such piece of legislation in Massachusetts includes a worker registry that would require agencies to provide a worker’s private information to the state. That piece of legislation passed the Massachusetts Senate on Nov. 15 and was sent to the governor. The information the home care agencies would have to provide includes gender, mailing address and current address.
That information could then be shared with a third party including a labor union.
“We feel that this puts our employers and our agencies at legal risk in that you are basically providing your employees’ information without their consent,” says Jake Krilovich, director of legislative and public affairs for the Home Care Alliance of Massachusetts, based in Boston.
Third party is loosely defined in the legislation, Krilovich contends.
This gives rise to other potential issues — including whether third parties could use the personal information during checks of employees’ immigration status.
Plus, if caregivers are victims of domestic violence or sexual abuse, disclosing their information to third parties could potentially create a safety risk.
Unionization a factor in the legislation
This type of legislation would offer labor unions an opportunity to organize home care workers, who have been a difficult group to reach because they do not typically come and go at a centralized office, Maddaloni says.
To start the process to organize, a union needs to show the National Labor Relations Board at least 30% of employees are interested in having the union at their place of employment, Maddaloni explains. This is often done by gathering signatures.
Next, an election must occur and the agency must turn over a list of all employees so the union can contact them and generate support for forming.
“What this law effectively does is put that contact information in the union’s hands even before there’s any indication that there are employees who want to be in a union,” Maddaloni says.
Follow tips to inform employees
Don’t make threats or offer incentives. Be careful that your agency’s communication doesn’t come across as threatening. Talking about shutting down if employees unionize or suggesting that employees could be fired for helping organize a labor union would constitute a threat and violate federal law, Maddaloni says.
Likewise, agencies shouldn’t offer any kind of incentive to employees as a reward for not facilitating the formation of a union.
Focus on educating, not advocating. Agencies can let caregivers know what the proposed legislation is and what it could mean for access to their private information, Bongiorno says.
Owners can even suggest, though not direct, caregivers reach out to their lawmakers and share their own opinions, Bongiorno says.
But agencies should not tell caregivers what to say or what their opinions should be, Bongiorno adds. — Kirsten Dize (firstname.lastname@example.org)
Marketing & referrals
Court ruling on marketers, non-compete agreements a ‘game changer’ for home care
By: Elizabeth Hogue, Esq.
The Florida Supreme Court has recently determined that home health marketers can’t poach referral sources from their former employers if they previously signed non-compete agreements.
The decision is a likely game changer for home care marketers and their employers nationwide, regardless of whether they work for Medicare skilled agencies or private duty companies.
The Sept. 14 decision makes it clear that referral sources of home health agencies can be protected through use of appropriate non-compete, non-solicitation and confidentiality agreements.
Home health marketers often utilize referral sources from former employers, believing they’re not violating a non-compete agreement. But under the new ruling, marketers who do so could be responsible for paying their former employer all of the revenue lost because the marketers solicited those referral sources.
Although this decision applies to home health providers in Florida, it likely will be followed by other jurisdictions. That’s because it is a decision of the Supreme Court in that state.
The case of Elizabeth White v. Mederi Caretenders Visiting Services of Southeast Florida, LLC et al; Americare Home Therapy, Inc. v. Carla Hiles involved skilled home health agencies. But the same reasoning is likely to be applied to other types of home care providers including hospices, home medical equipment (HME) companies and private duty agencies.
Background on the decision
The decision stems from two circumstances involving employees working to market and solicit referrals for home health providers.
In each instance, the employee signed a non-compete agreement that prevented her from working in a certain area for one year after working for her respective employer.
Both employees went on to work for competing providers in overlapping territory.
One former employer saw a decline in referrals of new clients from sources assigned to that employee. In the other instance, the former employer received no referrals from the same sources that generated about $712,000 in gross revenue for the agency the previous year.
The Florida Supreme Court sent the case back to a lower court to determine the action to be taken against the marketers. That action had not been decided as of early November.
Background on the decision
Develop agreements for marketers. Agencies should create and use non-compete, non-solicitation and confidentiality agreements in order to protect referral sources when marketers leave. Agreements should include reasonable restrictions depending upon state law on the subject.
Agencies also may include non-solicitation clauses regarding employees, patients and referral sources. A standard agreement can be used, but agencies may also make changes to provisions in the agreement for specific employees.
- Make agreements a condition of employment. Require marketers to sign non-compete, non-solicitation and confidentiality agreements when they are hired. Current marketers also should be required to sign such agreements as a condition of continued employment. Remind marketers of these agreements when they leave the agency
- Know your state requirements. Make sure non-compete, non-solicitation and confidentiality agreements comply with applicable state requirements. Laws in this area currently vary by state.
- Educate marketers on this court decision. Informing employees about this case can help them better understand their limitations when they leave your agency. Such education also can keep them in the know about the potential penalties for violating non-compete, non-solicitation and confidentiality agreements and serve as a deterrent.
- Retain documentation of lost revenue. If a marketer goes to a competitor and starts soliciting referral sources obtained from your agency, be sure to keep clear documentation of lost revenue. This likely will be crucial in making a case and protecting agency interests.
About the author:Elizabeth Hogue, Esq. is an attorney representing health care providers around the country. She has published books and articles on health-related topics. She has offices in Washington, D.C. For more information, contact ElizabethHogue@ElizabethHogue.net.
Related link: View the full ruling here http://bit.ly/2zom7HC .
In the October Issue
Look for ways to control prices as regulatory burdens drive up costs for agencies
The cost of home care services is on the rise for consumers, and providers should consider cost-saving strategies to keep prices manageable for clients. The cost of home health aide services increased by 6.7% in 2016, according to the 2017 Genworth Cost of Care study. The jump in cost is part of the second highest year-over-year increase for home care since the study’s inception in 2004.
Homemaker services also saw a 4.75% increase in cost for the consumer, the study shows. For years the cost of home care was fairly stable, but over the past few years that has changed.
The jump in cost isn’t a complete surprise to many in the industry, given recent regulatory changes paired with challenges in caregiver availability that currently impact home care.
"There’s a number of factors weighing into this," says Bob Roth, managing partner with Phoenix-based Cypress HomeCare Solutions.
One of the biggest changes influencing the cost for home care aide services is the elimination of the FLSA Companion Exemption rule that negated the need to pay overtime exemption for caregivers working more than 40 hours a week and for live-in caregivers, Roth contends. Agencies are now more than nearly doubling their prices for live-in care in some instances in order to cover overtime costs, says Ginny Kenyon, founder and CEO of Kenyon HomeCare Consulting in Seattle.
The exemption was a luxury for agencies and consumers — as well as “for the caregivers since they were getting paid for working a lot of hours,” Roth says.
But the need to pay overtime and the tricky process involved in calculating sleep and break times have led Roth away from providing 24-hour care at all.
"The days of doing 24/7 care and live-in are gone in our market. It’s impossible for the consumer," Roth says. "The real unintended consequence of this is the consumers and the caregivers. As agencies we will survive."
Multiple factors drive caregiver cost
The cost of live-in care isn’t the only factor, however. Increases in minimum wage at the state level, the cost of providing health insurance as required by the Affordable Care Act and changes around the white collar exemption also have contributed to driving up the cost of employing caregivers, Roth says.
As a result, clients are either getting by with less service or looking to sources such as independent contractors. Roth says.
As agencies adjusted staffing practices to comply with changes to the white-collar exemption — which has since been struck down by the courts — some caregivers received fewer hours.
This puts a strain on caregivers’ finances. Some of these caregivers find private clients in order to get more shifts and recover lost income.
When these caregivers leave, it means the agency has another position to fill and will need to shoulder the expense of hiring and training a new caregiver as well as any overtime costs expended to cover additional shifts with fewer staff, explains Pat Skogan, consultant with Pathway Health in Lake Elmo, Minn.
It’s certainly costlier to continually hire, Skogan says.
Changes to wage-and-hour rules aren’t limited to the federal level, though.
In Roth’s state of Arizona, minimum wage has gone from $8.05 to $10 an hour. By 2020, minimum wage in the state will be $12 an hour. It’s a nationwide trend and one that directly corresponds to the cost of caregivers, both to agencies and to clients.
"We don’t have the luxury of eating [the wage increase]," Roth says.
Reduce costs, justify price to clients
Look for partnership opportunities. Build a relationship with an adult daycare, Roth recommends. Or consider partnerships with a hospice or Medicare home health agency, Skogan suggests.
"You definitely can lean on each other to meet the needs of the population you’re serving," Skogan says.
Hospices often need private pay caregivers, and if your agency partners with them, the hospice can access the staff they need and in exchange provide education and training, Skogan says.
"A private duty agency should always look at the hospice agencies in their geographic area because the hospice is the one service that you can contract for," Skogan says.
A mutually beneficial partnership can set the agency apart — justifying the cost of care and generating referrals.And a partnership that involves training also could be beneficial when recruiting new caregivers.
Develop specialty programs. By focusing on a certain area, such as dementia or Alzheimer’s, you can build a reputation and increase the value for your services to that client group, Roth says. His agency started a dementia line two years ago and it has been beneficial for the agency, clients and caregivers.
We can command higher pricing for what we do, and that money goes right to the caregiver,” Roth says.
Go electronic. If your agency isn’t utilizing electronic recordkeeping, scheduling or billing solutions, the productivity savings may help save you money in the long run, Skogan says.
Electronic scheduling allows for automatic reminders and efficiency in communication that help save time.
Many providers in private duty home care use paper for documentation, scheduling and billing, Skogan says. Paper is more difficult to manage and keep track of, making it less cost-effective, she contends.
Skogan believes the investment in electronic solutions is necessary to stay relevant in the industry.
- Consider technology solutions. An agency in California is using cameras and sensors in clients’ homes to supplement caregiver visits and provide 24/7 monitoring without paying costs associated with live-in care, Keynon says.
"It’s very affordable to implement,” Kenyon says.
The system involves motion sensors that activate cameras to track the client’s movements. If the client doesn’t make it to the next room within five minutes, the system will send an emergency alert and contact the fire department.
The system is a cost-saving alternative for agencies, Kenyon says. — Kirsten Dize (email@example.com)
Conflicting court decision, state DOL change leave NY agencies in limbo on live-in pay
Agencies in New York are facing conflicting guidance from courts and the state Department of Labor (DOL) on how to pay home health aides working 24-hour shifts.
A court appeal has been filed and the outcome will determine next steps for agencies in the state, says Eileen Maguire, attorney with Indianapolis-based Gilliland, Maguire & Harper, P.C.
In September, a New York appellate court ruled live-in home health aides should be paid for 24 hours of care in a day because they were not allowed to leave the clients’ homes during break and sleep periods.
Home care providers in New York had been paying live-in caregivers for 13 hours a day, to exclude eight hours of sleep and three hours for breaks. The practice was based on a 2010 opinion letter from the state DOL.
But the September decision by the Second Department of the Appellate Division in the case of Lilya Andryeyeva v. New York Health Care, Inc., ruled this practice is contrary to state minimum wage law, which dictates an employee must be paid at least minimum wage "for the time an employee is permitted to work, or is required to be available for work at a place prescribed by the employer."
In response, the state DOL Labor amended its wage order effective Oct. 6, 2017. The amendment clarifies that the wage order shouldn’t be interpreted as requiring home care aides working a 24-hour shift be paid minimum wage for meal periods and sleep times excluded from hours worked under the Fair Labor Standards Act (FLSA).
While this court decision and DOL update only directly impact agencies in New York, agencies elsewhere must become familiar with their own local laws, Maguire says.
If your state also has broadly written language in this area and your agency relies strictly on federal law, the ruling serves as a harsh warning, according to Maguire.
In states that adopt FLSA rules as they currently stand, agencies shouldn’t encounter this issue because there is no conflicting state law that can be open to interpretation, Maguire explains.
"It’s critical that you pay attention to your state law and how it pertains to your home care wage-and-hour practices,” Maguire says.
Read your state regulations and follow any court decisions that could influence how those regulations are interpreted, she advises.
In September, the New York appellate court also affirmed a lower court ruling to certify a class action in the case, meaning it can move forward as a class action lawsuit. That class includes 1,063 home attendants who worked 24-hour shifts for New York Health Care Inc. between Dec. 28, 2007, and March 8, 2013.
The state DOL amendment is not retroactive and the court rulings remain in place. This leaves New York agencies open to potential liability and in limbo on how to proceed.
"It depends on what the highest court is going to do,” Maguire says. — Kirsten Dize (firstname.lastname@example.org)
Related link: View a copy of the full court decision at http://bit.ly/2wYtIPp.
In the September Issue
Understand wage options after increased 'white collar' exemption ruled invalid
A recent decision by a U.S. District Court in Texas has killed white collar exemption changes for now, meaning agencies won't be required to pay overtime based on salary exemption levels more than double what they once were.
Since many agencies already had adjusted practices because of this change, they will need to re-evaluate the way they pay employees to have the best results going forward.
The changes to the Fair Labor Standards Act (FLSA) increased the current salary level of $23,600, or $455 a week, to $47,476, or $913 a week, needed to qualify for the exemption ( PDI 6/17).
The rule was set to go into effect Dec. 1, 2016, but a nationwide preliminary injunction blocked its implementation.
On Aug. 31, U.S. District Court Judge Amos Mazzant concluded that the Department of Labor (DOL) had set the salary threshold so high that it essentially eliminated the second criteria of job duties in determining overtime exemption. Mazzant determined that is something the DOL doesn't have the authority to do.
In a court motion, the DOL said it won't pursue an appeal that previously had been filed in the case, although during a teleconference in early September, DOL officials said they were exploring legal options, says Eileen Maguire, attorney at Indianapolis-based Gilliland, Maguire & Harper, P.C.
The AFL-CIO had tried to step into the DOL's role and take over the case, but the union's motion was denied.
At this point, the regulation is dead and attorney Robert Markette with Indianapolis-based Hall, Render, Killian, Heath & Lyman doesn't believe it likely that a third party will be able to take up the case.
The DOL already is investigating what the next step could be. It filed a Request for Information that was published in the Federal Register July 26. The request seeks public comment on minimum wage and overtime requirements. The comment period ends Sept. 25.
It's possible the DOL will take those comments and incorporate them into a new proposed rule, but it could take a year before anything is finalized, Maguire says.
Consider these options after court ruling
Pay new hires at a lower rate. New employees don't need to be paid at the same level as existing employees, Markette says.
If an agency decides increased salary levels aren't sustainable for new hires, the agency must be careful to document the change and reasons it was made in order to show the pay differences are not discriminatory, Markette says.
Because employers can't prevent employees from discussing pay with each other, agencies that take this approach also should have an open discussion with staff. Explain that the higher pay is a historical issue and designed to comply with a regulation that is no longer in place. Let employees know the agency cannot afford to pay everyone that salary because of the realities of the business, Markette says.
Navigate the sticky scenario of rolling back salaries. For agencies that raised salaries to ensure compliance with the rule, it will be difficult, though not impossible, to make adjustments.
It's not against the law to reduce salaries, but agencies who decide to do so need to make sure they comply with any advance notice requirements in their state and must demonstrate a non-discriminatory business justification for the move, Maguire says.
In light of "hints" from Labor Secretary Alexander Acosta, Maguire also recommends agencies taking this action consider a salary level in the mid-$30,000s to mitigate risk in the event of new salary requirement changes.
Keep in mind, though, that reducing pay can lead to problems with recruitment and retention — issues that already plague the industry as a whole — which makes this option less than ideal, Maguire says.
Take into account what competitors are doing. It's possible certain markets have adjusted to higher salaries, which will require maintaining those salary levels to stay competitive. While Markette doesn't believe this is universally the case, it's monitoring salary levels in your area to be sure your agency is still a contender for talented caregivers.
Consider changing from hourly back to salary. Agencies that moved all employees to hourly and overtime eligible pay in order to comply with the rule can change back, Markette says. Making the switch back to salary can help avoid the headache of tracking overtime, Markette says.
Before doing so, however, conduct a business analysis.
"The concentration should be on what is best for the morale and retention of employees and your bottom line finances," Maguire says.
Offer productivity bonuses. If an agency decides to make the shift from hourly back to salary, employees can feel like they are losing pay with the loss of overtime eligibility, Markette says.
To reduce the risk for disgruntled employees in this scenario, consider offering a productivity bonus so employees stay motivated and don't feel like they're being short-changed.
This kind of bonus would incentivize the number of visits a caregiver conducts, which can be especially helpful in private duty when agencies are paid per visit as opposed to per episode, as in home health.
It's also worth considering implementing a salary slightly higher than it was before the change to hourly. Taken in combination with the elimination of overtime costs and compliance issues around overtime, that increase may be a worthwhile compromise, Markette says. — Kirsten Dize ( email@example.com)
Marketing & referrals
Agency's tech built to track outcomes, attract referrals in value-based space
Homewatch Caregivers, a non-medical home health care agency, recently launched proprietary technology that gives a visual, digital representation of how clients are doing in the agency's care.
The technology allows clients and families to track progress and also lets the agency demonstrate outcomes to referral sources, says Julie Smith, the agency's COO and president.
Demonstrating and tracking those outcomes is how the agency becomes a better partner to hospitals and other facilities. While it's too soon to show results, the Boulder, Colo.-based agency expects to see an increase in future referrals as a result, Smith says.
Private duty agencies should track client outcomes as a way to demonstrate value to referral sources such as hospitals and skilled nursing facilities, says Stephen Tweed, CEO of Leading Home Care in Louisville, Ky.
Although value-based purchasing doesn't directly impact how private duty agencies are reimbursed, agencies need to pay attention as the model becomes more of a focus in other areas of health care.
For example, being able to show a doctor your success at preventing falls for a client at risk for them can prove valuable in building relationships with referral sources while also benefiting the client, Smith says. Her agency's software measures and tracks fall risk as well as activities of daily living such as eating, bathing, dressing, toileting and transferring.
The agency shares outcomes with clients and families through a shared online portal or in paper format on an ongoing basis.
Sales staff show the actual outcomes and data collected to referral sources in the field, Smith says.
"This is far more valuable to referral sources than a brochure," Smith says.
Become a partner in value-based model
Historically, home care companies have talked about quality but haven't necessarily measured it, Tweed says.
"You've got to be a great partner," Smith says. "If all of the other providers in the care continuum are focused in on [value-based care] and you're not, that doesn't make you a good partner. It just really stitches us into that continuum of care."
Being able to demonstrate low rehospitalization rates, for instance, can help private duty agencies gain referrals from hospitals and skilled nursing facilities whose outcomes are tied to payment, Tweed contends.
"It's very clear on the Medicare and Medicaid side the government payers want to buy value," Tweed says.
Some of Tweed's home care clients have started tracking outcomes in order to demonstrate value to referral sources, and it's an endeavor that has been successful.
"There are things we see some of the top tier home care companies doing — this is exception, not majority," Tweed says.
Keep an eye on rehospitalizations
One of the main areas to track is rehospitalization rates, Tweed says. This is in part because it's one of the easiest areas to track. Another reason is because it's an area that home care agencies can help improve.
Two of the major causes for rehospitalizations are problems with medication compliance and failure to follow-up with a physician, Tweed says.
"Who better to make sure that the patient takes their medication and goes to the doctor than a home care worker that is in the home every day," Tweed says.
Having someone to check on the client and make sure they are taking their medications can reduce the likelihood that the client will have to go back to the hospital. And being able to prove that positive outcome with data makes marketing to medical facilities easier, Tweed says.
Do this to start demonstrating value
Develop a system for tracking. This can be done manually with Excel spreadsheets. These spreadsheets should at least include when the client was admitted to care and when the client was discharged and why, Tweed says. Note if the client improved and no longer needed care or if the client went back to the hospital, and keep careful account of that percentage.
Some agencies track this information within their scheduling software, Tweed says. This approach is particularly helpful if the software allows for specific, user definable fields to document and track if/when a client returns to the hospital.
Consider tracking common diagnoses. Keeping track of clients with diagnoses that commonly lead to rehospitalization can add another layer of useful data for agencies looking to demonstrate valuable outcomes. Under the hospital readmission reduction program, hospitals with readmission rates above the national average are penalized by a reduction in payments.
Tracking the same conditions — heart attack and heart failure, pneumonia, chronic obstructive pulmonary disease (COPD), elective hip or knee replacement, and coronary artery bypass graft (CABG) — can make the data more valuable to hospitals. Agencies should track how many clients with these diagnoses are readmitted within 30 days in order to provide more valuable outcomes data to hospital referral sources.
"The home care companies that are more attuned to this will be tracking by disease," Tweed says. "The vast majority of home care companies do not track that information at all — they may not even have the diagnosis in their records." — Kirsten Dize ( firstname.lastname@example.org)
In the August Issue
» Risk and rising fines increase the importance of OSHA
» Focus on emails, digital newsletters for a successful online marketing program
» 5 Secrets to Better Scheduling of Mobile Workers for In-Home Healthcare
Risk and rising fines increase the importance of OSHA
Review your agency’s policies for keeping employees safe from hazards. The majority of employers are subject to the Occupational Safety and Health Act, and more workers are injured in the health care and social assistance industry sector than any other, according to the Occupational Safety and Health Administration (OSHA).
The law mandates that employers provide a workplace free from known health and safety hazards and to comply with applicable OSHA standards.
In addition, 28 jurisdictions operate OSHA-approved statewide programs that are at least as stringent as OSHA’s but may include additional requirements for employers in those locations.
Some requirements, such as keeping employees safe from workplace violence and having emergency exit routes pertain to all employers. Employers also need to display in a conspicuous place either OSHA’s or a state program’s official poster alerting employees to their rights. There are also recordkeeping requirements.
Take note of provider-specific standards
Some standards are particular to the health care industry. Some of the requirements include taking safeguards to prevent or limit exposure to unsafe chemicals or situations, having procedures to deal with an incident and employee training.
Penalties for noncompliance skyrocket
Many OSHA investigations into safety concerns stem from complaints filed by employees, says attorney Carla Gunnin with Jackson Lewis in Atlanta. OSHA has been active in inspecting and issuing citations to medical providers, she says.
Moreover, the penalties for OSHA violations have jumped substantially. Previously penalties ranged from $7,000 to $70,000 per violation; it’s now $12,471 to $124,709 per violation. Penalties for failing to abate violations have increased from $7,000 per day to $12,471 per day.
Employers also can be ordered to cease and desist an activity or rectify a hazardous situation, says attorney Steven Swirsky with Epstein Becker & Green in New York. Being found in violation of OSHA also generates significant negative publicity, he adds.
OSHA’s website provides tools and resources to help employers comply, including model programs for some standards and e-tools.
Start with an assessment
The first step to OSHA compliance is determining what standards your agency must meet and where it falls short. Start with a mock audit, Gunnin suggests.
Agencies may use one or more methods to conduct the initial assessment.
- Conduct a self-assessment. OSHA offers a self-assessment checklist that employers can use to see whether their compliance has gaps.
Obtain free help from OSHA. Small and medium-sized employers can contact OSHA’s free and confidential onsite consultation program. The program helps identify hazards, provides advice on compliance with OSHA standards and helps establish injury and illness prevention programs.The program is not part of OSHA’s enforcement arm and using it will not result in penalties or citations, according to OSHA.
- Get help from an affiliate. Home care agencies connected to a larger organization — such as a health system — may be able to get assessment assistance from that entity, Gunnin says. — Marla Durben Hirsch ( email@example.com)
Related links: View OSHA’s list of states with their own OSHA plans at http://bit.ly/2sEMAgq.
Marketing & referrals
Focus on emails, digital newsletters for a successful online marketing program
Ask existing and former clients for their email addresses as a way to strengthen your digital marketing efforts and increase your referrals.
But that’s only one piece of the puzzle. Agencies need to provide consistent, valuable online content to really make the effort worthwhile, says Connie Parsons, COO with IlluminAge Communication Partners in Seattle.
AMR Care Group, based in New York, has used a digital marketing program to help grow the agency’s census 25% per year over the past few years. The agency typically has between 30 and 40 clients at a time.
“We’ve had some of our biggest cases come through the internet, so that’s telling in and of itself,” says Anne Markowitz Recht, CEO and founder of AMR Care Group.
AMR Care Group is not alone. Many agencies have recognized the growing importance of digital marketing, and even strong agencies “will face the threat of newcomers overshining their brand if they do not adopt modern marketing practices,” Parsons says.
Existing and former clients made up the top referral source for private duty home care agencies in 2016, according the most recent Private Duty Benchmarking Study by Home Care Pulse in Rexburg, Idaho.
Double your email lists in one year
A strong digital marketing program should include a solid website, a blog, email newsletters and social media. Email marketing is a key piece of this type of program and may be one of the most impactful elements.
“You can touch your network of customers and referral sources once a month with email marketing, making it the perfect complement to your local marketing and outreach efforts,” Parsons says.
Start the process by getting proactive with gathering emails. Home care agencies have contact with new people on a regular basis, but may not always request email addresses.
It’s possible to double email lists within a year by getting email addresses from every source available, Parsons says.
Agencies also should consider offering people something of value for their emails. Recht suggests providing a digital brochure or white paper in exchange for email addresses, especially those gathered online through the company website.
To grow that email list, agencies can even consider running raffles or contests that require an email address.
Consider email pace and content
Efforts to collect email addresses go to waste if the list isn’t used in a concentrated email marketing and branding effort, Parsons explains.
Once a month is a good pace for email marketing, and those emails are easily supported with blog posts. Agencies also should include in those monthly emails any local marketing events agency staff plan to attend and additional news about the agency.
In fact, email may be more effective than social media, because it lands in the inbox regularly and goes directly to people you know or those who have some connection or interest in what you do, Parsons says.
“It’s unlikely that a busy professional is spending his or her time on Facebook seeking out your agency,” Parsons says.
That doesn’t mean social media has no place in a strong online marketing program, however. When it comes to social media, local content tends to gain the most attention. Work on making local connections by sharing photos from events or pictures of staff with permission. Volunteer and fundraising occasions are ideal for this.
Do this for successful online marketing
Give your website a hard look. If your agency’s website appears outdated or unprofessional, it can hurt the online marketing program overall.Scout out your local competition online to help identify areas for improvement on your own website, Recht suggests. Focus on design and consider hiring someone to write or at least copy edit the website for grammatical errors, Parsons says.Invest in making your agency’s website mobile friendly. Doing so will stop your agency from plummeting in Google’s search rankings on mobile devices, and it also will keep visitors on your website longer.
Get the most out of blog posts. Include a blog on your website and update it regularly. It’s crucial to get away from directly promoting the company in those posts, and instead focus on information potential clients, former clients and fellow professionals would find helpful, Recht says.AMR Care Group usually produces two to four blog posts a month, with topics ranging from weather safety tips to best practices when caring for someone with dementia. It’s important when posting to position your agency as an expert in the field — “and we’re the expert on aging and our content revolves around that,” Recht says.Keep blog posts light, active and full of personality when appropriate, Recht says. Agencies should include a call to action in blogs, such as, “Let us know if we can help you,” Recht says.
Consider using a freelancer to write content. Recht recommends online freelance site Upwork.com, headquartered in Mountain View, Calif. — formerly Elance.com — where agencies can search for people to write content for anywhere from $200 to $1,200 a month.“I would say $500 a month would be a very good jumping point to get something done,” Recht says.Upwork.com recommends creating a job post that outlines what you need done, when you need it and start and end dates for your project. The site also recommends including a “vague” request in the job post such as “please reference ‘clouds’ in your reply” in order to weed out less detail-oriented candidates.The site also suggests eliminating proposals with any grammatical issues, looking at speed of response from the writer, conducting interviews and testing applicants’ work with an initial, paid assignment. — Kirsten Dize ( firstname.lastname@example.org)
Mobility matters, especially in healthcare. Learn what other healthcare organizations already know — the secrets to improving mobile workforce scheduling so you can deliver a wide range of services in a cost-effective, highly productive way for healthcare professionals and patients.
In the July Issue
Wage and hour
Properly pay staff for travel time to avoid potential labor violations, costly lawsuits
With several different approaches available for appropriately handling employee travel time, agencies should be aware of the potential pitfalls and benefits to each option.
For many private duty home care agencies, there is confusion around the difference between mileage reimbursement and paying for travel time, according to attorney Eileen Maguire of Gilliland, Maguire & Harper, PC in Indianapolis.
Under the Fair Labor Standards Act (FLSA), traveling for work purposes during the work day qualifies as compensable time worked and needs to be paid at minimum wage or higher, Maguire says. Simply reimbursing employees for mileage will not cover the travel time requirement, she explains.
“There are some significant financial penalties if you don’t get this right,” says attorney Robert Markette of Indianapolis-based Hall, Render, Killian, Heath & Lyman.
If travel time is not paid for properly, it can mean federal and state labor violations carrying legal penalties that usually allow employees to sue for back wages. ( See tool, insert.)
After factoring in liquidated damages equal to the wages owed in addition to attorney fees, even a small amount of back wages could result in a five-figure settlement, Markette explains.
Consider your options for travel time
Markette says there are several primary approaches to handling travel time correctly.
Treat all employees as nonexempt and have them come into the office to physically clock in, pick up files and then go out for visits. After all visits are completed, the employee would return to the office to clock out and drop off files, Markette says.
This option provides clear records and a full picture of time worked.
While this is Markette’s preferred option, he says it is not as popular with providers because it may require hiring additional staff to be in the office and often garners pushback from employees who feel it limits their flexibility.
Schedule staff with back-to-back visits and treat all hours between the start of the first visit and the end of the last visit as working time. This is also a good option, Markette says.
For instance, scheduling a caregiver from 9 a.m. until 5 p.m. and assuming all of the time between visits is compensable travel time and a designated lunch break.
“That’s an easy way to do it because it includes all the travel time,” Markette says.
This approach is perhaps the simplest answer to the drive time issue, Markette says. Agencies also will have all the information they need to prepare payroll whether employees turn in timesheets or not.
In some instances, employees may turn in timesheets with more time than indicated on the schedule. This could happen if a visit goes late, for example.
If that time is legitimate, Markette says, agencies can determine what additional pay was missed and pay it promptly. That scenario will not qualify as a willful violation because the agency paid the employee in good faith based on the information available, Markette explains.
Alternatively, agencies can pay a different rate for driving time and time spent in a patient’s home. If that is the case, however, Markette says agencies will need to use a telephone clock-in system or have staff record their own time in and time out at a client’s home and write down travel time separately.
If using separate rates, agencies likely will need additional staff in the office to verify those times.
Schedule staff with so much free time between visits that it would not qualify as compensable work time.
Based on the regulations, if employees are free to do what they want between visits, it is not considered working time, Markette explains. Because the regulation does not specify the length of break that would qualify as free time, this approach can be somewhat vague. Leaving a gap of three hours or longer between visits may be best if taking this approach, Markette says.
“Your best bet is to schedule in such a way that you eliminate the question,” Markette says.
Leaving long gaps between visits also can be a challenge for agencies facing a lack of available staff and a need for more people in the field.
Consider additional travel time tips:
Outline travel expectations for caregivers.
Including an expectation that caregivers will take the shortest routes is also a good thing to incorporate into written policy to ensure staff aren’t unnecessarily padding drive times and mileage, Maguire says.
Be sure to outline how you account for compensable travel time in a policy and review it with staff, Maguire says. Having a policy in place and documentation of staff acknowledgement will help protect agencies in the event of a dispute.
Use a map service to estimate travel time.
Agencies can use Google Maps or a similar mapping resource to estimate the travel time between visits, Maguire says. She recommends outlining the practice in a policy and giving clients the opportunity to sign off on the travel time or make corrections if significant traffic delays occur, for instance.
The practice wouldn’t require employees to separately track time, though corrections or adjustments would be accepted.
Don’t forget about mileage.
Maguire says it’s important for agencies to keep in mind that paying for travel time does not eliminate the need to pay employees for mileage. Both need to happen for agencies to be in compliance with federal wage-and-hour law. As of Jan. 1, 2017, the standard mileage rate set by the Internal Revenue Service is 53.5 cents per mile.
Be careful with rollout.
When changing policies surrounding travel time, be very careful about the messaging to employees, Maguire says. A change in policy could send up a red flag to employees that practices in the past were inappropriate. — Kirsten Dize ( email@example.com)
Hire the right staff, verify all services to steer clear of Medicaid fraud scrutiny
Experts say there has been an increasing focus on fraud enforcement when it comes private duty home care, making it more important than ever to be sure you’re hiring the right staff and double checking that services you bill for were in fact provided.
The HHS Office of Inspector General released its annual report on state Medicaid Fraud Control Units, outlining statistical highlights and trends from fiscal year 2016.
The fraud control units investigate various types of health care providers to determine whether fraud, abuse or neglect has occurred.
Personal care services (PCS) was the largest category of convictions in FY 2016. Thirty-five percent of the reported convictions — 552 out of 1,564 — were of PCS attendants, representatives of PCS agencies or other home care aides. Five hundred of the 552 convictions involved fraud.
That number is a slight increase over FY2015 when 483 of 1,553, or nearly one-third, of convictions involved personal care services attendants.
Since the early 2000s there has been increasing scrutiny of private duty, says Elizabeth Hogue, an attorney in Washington, D.C.
“The problem is that the federal government — starting with President [George W.] Bush — started putting enormous pressure on the states to control Medicaid costs,” Hogue says.
With that focus on savings came an uptick in audits and enforcements in order to recoup some of that money, Hogue says.
Shekeba DuBose, lawyer and founding member of The DuBose Law Firm in Columbus, Ohio, says one of the main things auditors look for when it comes to private duty is billing for services that were not provided.
“There are agencies that are subject to millions of dollars in recoupments,” Hogue says. “It can have such an adverse impact that it puts the agency out of business.”
In one example of fraud included in the FY 2016 Medicaid Fraud Control Unit report, a home care aide submitted time sheets for services while that patient was in the hospital and not under the aide’s care. The aide was sentenced to two years in prison and ordered to pay a fine.
With this in mind, it’s important for agencies to have appropriate checks and balances to make sure services were actually provided, Hogue says. These checks can include telephonic check-in systems or signatures of patients or caregivers on visit documentation.
“Fraud enforcers have been clear for years, that if you knew or should have known that it is intentional,” Hogue says.
Avoid fraud: Screen all job candidates
Because many of these convictions involve attendants and home health aides committing fraud, agencies need to take extra steps to make sure they thoroughly screen caregivers.
“The agency ultimately is responsible for the people they employ and put in people’s homes,” says Ginny Kenyon, founder and CEO of Kenyon HomeCare Consulting in Seattle.
Kenyon gives all prospective employees two tests, the first on their knowledge base including basic skill set and understanding of the fundamentals of care.
That first test assesses for an understanding of the symptoms of the most common diseases and the red flags for them, how to properly set up for a shower or a tub bath, how to do a bed bath and foods to avoid for certain diseases or conditions, among other things. If the candidate doesn’t pass that test with at least an 80%, Kenyon stops the hiring process.
The second test Kenyon uses is a personality test to check for honesty, loyalty and reliability. She recommends a test through Stephen Tweed of Leading Home Care. The Caregiver Quality Assessment is a four-point pre-employment assessment that measures attitudes, behaviors, cognitive ability and employee engagement, according to Tweed. Scores are assigned to the responses and interpreted accordingly.
Companies pay an annual fee ranging from $1,400 to $3,500 for unlimited use of the assessment. The assessment fee is determined by the number of active caregivers with an agency.
“If you have someone who skates on the edge of honesty, I would not hire them no matter how much you like them,” Kenyon says.
Hiring the right staff after a thorough vetting process is one of the best ways to protect against fraud, Kenyon says.
“You’ve really got to have a very tight hiring process so that you’re not hiring someone who will steal from your customers,” Kenyon says.
Additional strategies to prevent fraud
Conduct regular supervisory visits.
Kenyon recommends unannounced visits as one of the best ways to make sure caregivers are doing what they say they are doing.
“Supervisory visits are absolutely critical to success and making sure you are in compliance with your state rules,” Kenyon says.
While some states only require such visits once a year, Kenyon says that isn’t enough. She suggests conducting an unannounced supervisory visit once in the first month a caregiver is with the agency and once every three months after that. Visits should serve as a way to be sure caregivers are where they should be and are following care plans as well as appropriate procedures in the home.
Verify that all services were provided.
Compare case notes and do routine phone calls with a family member or the client to ensure the services outlined are what is being provided, Kenyon says.
Conduct audits before billing and make sure documentation is in order, Hogue says.
Do everything you can to verify whether your agency is truly providing services for which it bills, Hogue says.
Know your state requirements.
Each state Medicaid program may have different requirements, and it’s important to know these differences, Hogue says. Some states, for example, may require signatures while others may not. In states where it is a requirement the absence of signatures would trigger an audit and the money likely would be recouped, Hogue explains. — Kirsten Dize ( firstname.lastname@example.org)
In the June Issue
» The push to restore companionship exemption is ongoing, slow-moving process
» Improve retention by addressing employees’ compassion fatigue
» 5 Secrets to Better Scheduling of Mobile Workers for In-Home Healthcare
Wage and hour
The push to restore companionship exemption is ongoing, slow-moving process
Private duty industry advocates continue to push to restore the companionship services exemption for personal care workers. Meanwhile, conflicting rulings around the rule’s effective date are leading to confusion and, in some instances, expanding potential liability for agencies.
The revised regulations now require all caregivers employed by third parties be paid at least federal minimum wage for all hours worked and overtime at no less than time-and-a-half the regular rate of pay for anything over 40 hours in a workweek.
Opinions differ on rule’s effective date
Complicating the issue are conflicting interpretations of the effective date.
Different courts have ruled in different ways, but if an agency is sued for back wages, the November enforcement date provided by the Department of Labor (DOL) offers a smaller window of liability.
The rule originally was set to go into effect on Jan. 1, 2015, but the D.C. District Court ruled that the DOL had overreached its authority making the changes in that rule.
An appeals court said the district court was wrong to do so and required that court vacate its ruling effective Oct. 13, 2015. After that, the DOL implemented an enforcement date of Nov. 12, 2015.
But several lawyers have argued successfully in court that vacating the decision means the district court ruling no longer exists. Based on this argument, employees would be due back wages through the original January 2015 effective date, adding 11 months of liability for agencies.
“There’ve been three different effective dates that have been recognized by the courts,” notes Joseph Maddaloni, Jr., attorney and partner at Lentz & Gengaro LLP in West Orange, N.J.
It will likely be left to a court of appeals to rule on whether Jan. 1, 2015, Oct. 13, 2015 or Nov. 12, 2015 will be the effective date that stands, Maddaloni says. If there is a division at the appeals level, the Supreme Court could get involved.
There may be bright spots amid the gloom, however.
With every passing day, an agency’s risk for being sued because of the change in regulation diminishes, contends attorney Robert Markette of Indianapolis-based Hall, Render, Killian, Heath & Lyman.
The window of damages is shrinking and as it does, the value of the case drops, Markette says.
The rolling two-year window already has passed for employees to sue agencies and claim Jan. 1, 2015, was the effective date and that the agency unintentionally failed to properly pay them that far back, Markette says. But employees have until Jan. 1, 2018, to sue agencies and claim Jan. 1, 2015, was the effective date and that the agency intentionally failed to properly pay them that far back.
“The issue of retroactivity is interesting, but it’s all going to be moot by November,” Markette says. “Most agencies will be in compliance after November 2015.”
If an agency is sued, Maddaloni says, the question of intention could help avoid liquidated damages, or additional damages equal to 100% of the back wages due.
In at least one court case, a judge ruled that an agency acted in good faith given the confusion, according to Maddaloni. In this instance, though the agency was still liable for back wages through Jan. 1, 2015, it was spared from paying damages.
Could this exemption come back soon?
While these issues continue to play out in court there remains a push for a reversal of the rule. With a long list of issues impacting private duty care, however, it’s not necessarily the top priority item and is not a change likely to happen immediately.
“It’s moving a little bit faster than a glacier,” says Bill Dombi, vice president for law at the National Association for Home Care & Hospice (NAHC).
At the start of 2017, Dombi says, the plan had been for NAHC along with Sen. Pat Roberts in the House of Representatives to sit down with the Labor secretary and members of the DOL to take a serious look at companionship exemption.
At that time, Andrew Puzder was still the nominee for the position. Puzder was someone they believed would be open to reversing the rule, according to Dombi.
But Puzder withdrew his nomination and Alexander Acosta was confirmed. Plans changed.
Dombi recently was part of a meeting with DOL staff, but it was more of a temperature taking excursion and not part of concentrated advocacy, he says. Dombi and others still hope for a regulatory change as opposed to a legislative one, in part because it may be difficult to get a bill passed given the current makeup in Congress.
Markette and Maddaloni don’t believe a full reversal of the rule is likely right now.
“I’m no longer holding out a whole lot of hope,” Markette says.
Follow these tips to comply with the rule
Agencies already should comply with the rule. However, one of the most difficult areas of compliance continues to be live-in caregivers, according to Maddaloni.
He gives the following suggestions for ensuring you’re meeting this requirement.
- Establish a clear schedule for live-in caregivers. It’s important to set a clear schedule for live-in caregivers so they know when set meal periods, break periods and sleep periods should occur, Maddaloni says. Even though the nature of live-in caregivers means those periods may be interrupted, it’s key to have those established times to make expectations clear for the caregiver, agency and client.
Ensure your documentation is in order. Have a timesheet for live-in caregivers to
fill out and make sure there is an accurate record of hours, including scheduled breaks and
sleep periods, Maddaloni says.
Any missed breaks should also be noted. This will help ensure not only that caregivers are paid for time worked, but also that there is proper paperwork to support it.
“Agencies continue to fall into a trap by not having proper recordkeeping in place for live-in [caregivers],” Maddaloni says.
Ultimately, the burden is on the employer to make sure all documentation is in place. Failure to keep accurate records could put agencies at risk should an audit occur.
Focus on clear communication with clients. Agencies should be sure to educate clients
on the shift away from a flat fee to an hourly model for live-in caregivers. Helping clients
understand the pay structure will eliminate any confusion if overtime is incurred, and also
can help clients become a partner in monitoring hours.
“If the client fully understands and appreciates the importance of keeping that 10-hour schedule then it’s going to make it easier for the employees to comply,” Maddaloni says.
For more information and strategies on complying with current wage and hour rules, sign up for the private duty preconference. Register now: http://decisionhealth.com/privateduty/ — Kirsten Dize ( email@example.com)
Improve retention by addressing employees’ compassion fatigue
Identifying compassion fatigue in yourself and in staff — and working to address the issue — can help your agency retain employees longer and achieve better client outcomes.
Essentially a form of secondary traumatic stress, compassion fatigue is a condition that strikes people who regularly deal with emergencies that are not their own. While akin to burnout, compassion fatigue has been identified as a separate experience.
Someone who deals with the emotional stress of others and is constantly required to offer compassion is especially at risk for compassion fatigue. ( See tool, insert.)
“I think of it almost as a form of PTSD,” says Tom Voiles, president, Shoshana Technologies in Ann Arbor, Mich. “They’re constantly under this stress that most people won’t even understand.”
Compassion fatigue can impact caregivers. But it’s important to note that it also can affect owners, schedulers and members of staff in the office. And most office workers will quit instead of trying to work through the condition, says Laurie Miller, owner and administrator at Apple Care and Companion in Carollton, Texas, and co-founder of the Compassion Fatigue Symposium.
Steps to identify compassion fatigue
The first step in combating compassion fatigue is recognizing what’s happening, Miller and Voiles agree.
Symptoms can include apathy, feeling depressed, being overly emotional, being short tempered even when there is not a good reason to be, hearing personal problems of others as whining or feeling enmity toward people that once only evoked sympathy.
Those suffering from compassion fatigue may find people annoying that never used to bother them, may want to isolate themselves from others even if they used to be very sociable and may feel negative and give disproportionately negative reactions even if they are typically a positive person.
“They start to have a hard time providing that compassion that is part of their role and that starts to leak into all areas of their lives,” Voiles says.
Voiles recommends looking for these changes in behavior as possible indicators of compassion fatigue, and keeping in mind that it is a chronic condition as opposed to a reaction to a one-time life event or single bad day.
It becomes a struggle to show compassion that is so integral a part of the home care business, and it extends beyond the workplace. But once compassion fatigue has been identified, there are simple steps to address it, Voiles says.
Steps to address compassion fatigue
Establish clear boundaries. Miller turns off the email notification on her personal
phone, sets times she is unavailable and turns her phone to vibrate or silent during that
For owners and key staff, this can be one way to set boundaries. Making it an explicit policy for clients and families not to call outside business hours except in the event of an emergency can also help, Voiles says. It gives staff a leg to stand on when calls that do not relate to an emergency happen after hours.
Schedule down time and fun. Taking a vacation can go a long way toward combatting
compassion fatigue, but that’s not the only way to schedule time away, Voiles says.
It can be as simple as scheduling time for personal things, such as attending your child’s sporting event. Putting personal time — even a few hours — in the calendar and sticking to it can help keep compassion fatigue in check and restore balance, according to Voiles.
Share the burden of draining responsibilities. Establishing an on-call rotation
can go a long way in reducing compassion fatigue, Voiles says.
Spreading out responsibility for difficult clients and tasks during the work day also can help. In the case of a miserable client or an especially sad case, for example, allowing staff to tag team can reduce the stress of those situations, Voiles says.
To learn more recruitment and retention strategies, attend the 20th Annual Private Duty National Conference & Expo at Caesars Palace in Las Vegas Nov. 15-17. Register now: http://decisionhealth.com/privateduty/. — Kirsten Dize ( firstname.lastname@example.org)
Mobility matters, especially in healthcare. Learn what other healthcare organizations already know — the secrets to improving mobile workforce scheduling so you can deliver a wide range of services in a cost-effective, highly productive way for healthcare professionals and patients.
In the May Issue
Changes to ‘white collar’ exemption in limbo; agencies should prepare anyway
A federal appeals court has granted the government’s request for an extension until June 30 to file a motion in a case involving whether to increase minimum salary requirements for overtime exemptions.
Rather than waiting patiently for resolution in the case, private duty agencies should act to prepare for potential changes — including tracking all employees’ hours if they haven’t been already, industry experts contend. That’s because if minimum salary requirements increase, agency owners potentially could be required to provide back wages to affected employees.
Under the previous administration, the Department of Labor (DOL) aimed to increase the minimum salary requirements for overtime exemptions to $47,476, or $913 a week. This increase would more than double the current salary level of $23,600, or $455 a week (PDI 7/16).
The increase was set to begin Dec. 1, 2016. But a federal judge on Nov. 22, 2016, granted a nationwide preliminary injunction that stopped the change (PDI 1/17).
Alexander Acosta, confirmed as labor secretary April 27, has not yet made clear the new administration’s plans for the “white collar” exemption. However, he indicated during his confirmation hearing that he might seek to increase the income limit at a level lower than $47,476.
The extension for DOL’s response, granted before Acosta was sworn in, gives Labor time to submit its response to a motion that asks for the case to be dismissed, says Angelo Spinola, attorney, shareholder and member of Littler Mendelson P.C’s. Wage & Hour, Healthcare and International Law Practice Group.
The additional time will give Acosta the opportunity to decide whether to support the legislation of the previous administration, or to withdraw the appeal and go in a different direction.
During Acosta’s confirmation hearing, he expressed a view that the proposed increase was unprecedentedly high and that he thought a more rational increase should be somewhere closer to $33,000, Spinola says.
“I think that’s a good indicator of his viewpoint and what may happen,” Spinola says.
If Acosta takes this stance, the DOL would likely withdraw the legislation and draft a new proposal. It could take as much as a year for any new legislation to get through the approval and consideration process and it could be an even longer wait for the effective date to arrive.
“I think we’d be talking about a pretty long runway,” Spinola says.
Even if that happens, there are variables that could impact the outcome.
The AFL-CIO has filed a separate motion that, if granted, would essentially let the union step in as representative of exempt employees seeking salary increases should the DOL withdraw the appeal. A judge has yet to rule on that motion.
“Really it all hinges on Acosta and the courts’ decision to let someone other than the DOL intervene,” Spinola says.
Precedents could mean more problems
If the minimum salary requirements for overtime rise to $47,476 as proposed, private duty agency owners could be on the hook for back wages.
And if the outcome of legal arguments around the live-in and companionship rule are any indication, the lookback period could extend as far back as Dec. 1, 2016.
In a similar series of events, in December 2014 and January 2015 the U.S. District Court ruled that the DOL had overreached its authority making the changes in that rule.
The revised regulations required all caregivers employed by third parties be paid at least federal minimum wage for all hours worked and overtime at no less than time-and-a-half the regular rate of pay for anything over 40 hours in a work week.
Months later, a federal appeals court said the district court was wrong to do so and asked that court to vacate its ruling (PDI 1/17).
After that, the DOL implemented an enforcement date of November 2015. But several lawyers have argued that since vacating that decision essentially means the district court ruling no longer exists, employees should be due money owed back through the original January 2015 effective date.
“It’s been a real problem for the industry because no one was paying overtime until they were told to,” Spinola says.
While it may seem unfair, many courts are ruling that way. It sets a legal precedent that also could apply in the white collar salary exemption case as well, Spinola contends.
There are steps to protect against risk for back wages before the decision is made, however, Spinola says.
Steps to mitigate your own liability
Track hours for all employees — even those who are salary. Most employees overestimate
the number of hours worked in a week, Spinola says. If there is no record of actual hours
worked and employees decide to file for back wages, there is no way to prove otherwise.
Having all employees — even those who are currently exempt — track hours and turn in time sheets will provide documentation of hours worked and reduce the risk of overestimated numbers.
Make sure anyone in the at-risk bracket works 40 hours or less. Keeping employees
whose status could change under the white collar overtime exemption rule within the limits
of overtime can also serve to protect agencies from the potential look-back period, Spinola
Sticking to 40 hours a week would mean that even if the court decides in favor of the DOL, there wouldn’t be damages for the purposes of overtime, Spinola says.
- Consider reclassifying employees now. Do this by changing the status of exempt employees in the at-risk bracket to nonexempt and setting their hourly rate at the expected hours worked plus overtime to equate their current salary. Note: Changing employees’ status should be considered permanent, because changing back could lead to serious morale issues and negatively impact retention. — Kirsten Dize (email@example.com)
6 key questions to determine PHI risk when adopting new technology
By Paul Hirsch
As more agencies use real-time video and picture communications, they need to ask a set of questions to determine if they are at risk for civil penalties and violating HIPAA when transmitting and storing Protected Health Information (PHI).
Below are some examples of how a basic and familiar set of questions can help to design and implement effective security policies and procedures, or can even help to evaluate and negotiate with a vendor that claims to have a safe, secure and compliant product. ( See tool, insert.)
Is it or is it not Protected Health Info?
Agencies should note that HIPAA restrictions don’t apply to de-identified information.
De-identified information may be specific about health care status, services or similar matters. If it cannot be easily used to identify an individual in relation to those health care matters, it is not PHI. It is not necessary to analyze risk for non-PHI in the same way.
1. Who will be able to access the data related to the communications either during transmissions or after? If the services you are contracting for are essentially storage and/or transmission of information (which may include PHI), it’s important to ensure that it is not easy for just any employee or agent of the service provider to access your client’s PHI.
The data generally should be encrypted during transmission and storage.
There should be some valid underlying reason for any event where the service provider would be accessing any unencrypted data that is being or has been stored or transmitted.
A service you might be contracting for would include HIPAA-compliant messaging and communications platforms such as TigerText.
2. What data will be transmitted during the communications, and could that data be PHI? If an agency creates and utilizes policies and procedures to limit the data that is exposed, using non-HIPAA compliant services may be feasible.
Employees could do this by not exposing the client’s face or some piece of mail with the client’s name or address on it in the photo.
As long as the party on the other end of the text message acts similarly, the communication will have been HIPAA-compliant.
3. When and where will each party be when information is being exchanged? Obviously, employees should not openly discuss PHI on a cell phone while standing in line at Starbucks.
Planning for the when and where of communications reinforces good habits and helps cultivate a culture of awareness and compliance.
If an agency is using video conference technology to transmit PHI, even if it is HIPAA-compliant from a technology standpoint, all that compliance is for naught if either party is in an unsecured location where unauthorized people can see, hear or capture the communication.
4. Where will all the communication’s data, including metadata, be stored? Understanding the content of metadata and/or other information logged/recorded is important to a holistic approach to managing the security of PHI.
Any information that may lead to the identification of people in connection to their medical conditions and/or services is noteworthy, because it may be or may become PHI.
Consider this example: Agency employees are at a client’s house, and they are using a video conference software package to communicate with other staff about the client’s condition. The software used isn’t HIPAA-compliant, because it doesn’t adequately encrypt data during transmission or storage, but employees are implementing good procedures to minimize information spoken that could be used to identify the client.
However, cell phone data coverage is not sufficient at the client’s home, so employees are connected to the client’s Wi-Fi network. The software being used logs the IP address of the network that the staff is connected to at the time of the video conference.
That IP address may be traceable to the client’s physical location. If the IP address is the only piece of data that is logged but unsecured, it is not likely that, by itself, the IP address would constitute PHI.
However, the agency should be aware that one piece of data is being recorded. If someone accidentally says the client’s name and a drug being prescribed, those two pieces of information, together with the IP address, may be enough to identify and expose PHI. The information would be exposed to “the outside world” (anyone who intercepts the unencrypted data stream and the logged IP address).
5. Why could someone be motivated to circumvent security measures in place, and how could they circumvent those measures if they were motivated to do so? This is, essentially, a method to help cover every angle when analyzing the effectiveness of any security measure(s) in whole or in part.
For instance, think about how your agency’s main competitor could most easily and efficiently infiltrate your new technology to access data and poach clients. This mindset might allow you to identify weak links and fix those issues — such as ensuring information is password protected and that access to certain files is restricted.
Thinking outside the box is the key for this approach.
6. How much and what information would be exposed if one or more security measures failed? Redundancy is a core concept to any critical system.
If the security of information, especially PHI, is considered a “critical system,” then some amount of redundancy should be expected. It is important to ask this question so that weaknesses can be addressed before they become real problems.
About the author: Paul Hirsch has been an attorney at Pearson & Bernard, PSC in Edgewood, Ky., since 2012. He focuses on working with home health and hospice providers regarding State/Federal licensing and compliance; contract review and drafting; and the development and implementation of comprehensive policies and procedures of all types.
In the April Issue
Mergers & acquisitions
Expert: Failure to change ACA might lead to increased private duty transactions
The recent death of the American Health Care Act (AHCA) — the Trump administration’s plan to repeal and replace the Affordable Care Act (ACA) — may contribute to a second straight year of a significant number of mergers and acquisitions within the private duty industry.
The industry saw 49 transactions combined from 2013 through 2015, according to Pittsburgh, Pa.-based The Braff Group. But there were 39 transactions in 2016 alone, and the employer insurance mandate was one reason why, says Mark Kulik, The Braff Group’s managing director.
The trend of having so many private duty sales is expected to continue in 2017, and the fact that the employer mandate remains is a major factor why, Kulik says.
What has led to more transactions?
1. The employer insurance mandate’s inclusion within the ACA. Potential buyers in 2016 were able to get a better sense about how the mandate would affect agencies’ financials. And agency owners had another year to feel the mandate’s true impact on their business’ bottom line and decide whether it still made sense to own, Kulik says.
The AHCA would have eliminated penalties for employers who did not offer insurance. But the bill did not have enough votes to pass and was withdrawn March 24.
2. The ping-pong ball that was the companionship services exemption stopped bouncing in court. The Supreme Court in 2016 declined to hear the case involving home care. The Labor Department’s new companionship rules went into effect in October 2015.
Agencies should note that Congress wouldn’t be needed for the Trump administration to change the requirement in a way that would benefit agency owners, says Jack Eskenazi, managing partner of Healthcare Advisory Partners in Soquel, Calif.
Overall in home care, buyers have been focused more on narrow service sectors and less on geographical location, and there is less of a “land grab” mentality “as private equity groups and strategic players rushed into markets,” according to Braff data.
Also, buyers in 2016 made large strategic and selective acquisitions to round out their coordinated care strategy. That’s expected to continue, Eskenazi says.
Republicans won’t repeal, replace
For now, at least, there is no specific plan to repeal and replace the ACA.
The AHCA received significant opposition in Congress following its February release.
Estimates from the Congressional Budget Office in March conveyed a dire portrait of health insurance coverage should the AHCA go into effect. Plus, organizations such as the American Medical Association (AMA), American Hospital Association and the American Association of Retired Persons (AARP) and the National Association for Home Care & Hospice spoke against the bill.
Mandate has negative impact on industry
Eliminating penalties for not offering insurance would have had a significant positive effect on agencies, says Joseph Maddaloni Jr., partner at the law firm Lentz & Gengaro LLP of West Orange, N.J.
Some agencies have intentionally remained small in an attempt to avoid being financially penalized for not offering insurance, and eliminating penalties for noncompliance would have helped those agencies’ growth, Maddaloni says.
In a separate attempt to avoid the mandate, some agencies have had employees work too few hours to be considered full-time. So eliminating the penalty could have led to more full-time employment, Maddaloni notes.
It’s important to note, however, that for leading, successful agencies, the cost paid due to the employer mandate has already been “baked in,” Eskenazi says. As a result, the failure of the AHCA doesn’t have a devastating effect on them.
Make your agency more marketable
- Look at your business as a buyer would, and get your house in good financial order. Have fully accrued statements at least by quarter if not by month, Kulik says. That’s different than most private duty agencies, which operate on a cash basis.
Have metrics available and clearly reported. Things Kulik advises agencies have
available: How many referrals do you have, how many assessments, and how many admissions.
Track conversion rates over the course of time.
“Buyers want to see how effective you are of going from a phone ringing to getting a client,” Kulik says.
Understand your marketplace. Know your competition and your potential, Kulik says.
Tell potential buyers about your service area, existing market share and potential upside.
“Where are you going to grow the business?” Kulik asks. “What things are on deck?
- Examine your overall recordkeeping. Make certain your employee files are consistent with your policy and procedures — and current — and that client files are properly documented too, Kulik says.
- Be able to show you’re delivering quality care and your clients notice and appreciate it. Demonstrate “client stickiness” — that they’re going to stay with you and not go to somebody else, Kulik says. — Josh Poltilove (firstname.lastname@example.org)
Related Link: To view the Pew Research Center study, go to http://pewrsr.ch/1KAFrQ0
Recruitment & retention
It’s vital to attract millennial job candidates and make doing so a priority
Millennials dominate the U.S. workforce, making them an important group for private duty agencies to cater to through recruitment and retention efforts.
In 2015, millennials (those born between 1982 and 2000) overtook Generation X as the largest group in the nation’s workforce, according to the Pew Research Center.
At a macroeconomic level, for the home care industry to survive they have to find a way to tap into that large pool of labor force,” says Anne-Lise Gere, SPHR, an HR advisor and consultant at Gere Consulting Associates LLC.
Data show caregiver turnover rates are climbing, and Gere says an aging workforce is quickly leaving the industry.
According to the 2016 Private Duty Benchmarking Study by HomeCare Pulse in Rexburg, Idaho, the median caregiver turnover rate in 2011 was 49.8%. By 2015, that rate had climbed to 59.7%.
This makes the millennial candidate pool all the more important for private duty agencies. Catering to what millennials say they want is a big part of piquing this group’s interest, experts say. Part of what they want is to make a difference in their communities, Gere adds.
“When you look at surveys of what millennials want in the workforce, I think the caregiving industry has a good story to tell,” Gere says.
Offer value outside of pay, benefits
Leigh Davis, president of ELDirect In-Home Elderly Care in Fayetteville, Ark., says his company brands itself in a way that caters to millennials by playing up the ability for caregivers to manage their hours as best fits their own lifestyles while doing work that isn’t just a job, but a way to make an impact.
“We’re not the highest paying company in the area, so we have to be valued in other ways,” Davis says.
It’s an approach Davis finds catches the attention of millennials in particular because that group sees flexibility as one of the key benefits they want most, Davis says. It also doesn’t change the existing private duty business model, but instead adjusts the way it’s presented.
“We know we have to look to them already for the days and hours they’re open,” Davis says of caregivers, “so we’re taking this approach, turning it and marketing it.”
Understand that first impressions matter
A strong first impression is key to set an agency apart from other employers in the market, Davis says. Finding ways to recognize employees outside of pay and benefits is a major opportunity when trying to appeal to millennials.
“You can reposition yourself as an expert with millennials,” Davis says.
Something he finds is consistent across generations is that on a scale of one to 10, employees consistently rank salary around five.
“Thankfully we’re not having to roll out the pay, pay, pay, pay thing,” Davis says.
For millennials, Davis says, it’s less about long-term growth with a company and more about how a job suits them in their current circumstances.
The typical caregiver candidate has been a woman, age 45 and older, with real life caregiving experience, Gere says.
But those at the upper end of this group are quickly aging out of the workforce, and recovery from the recent recession has increased that pace, as some who were forced to work during tougher economic times are now finding enough financial stability to retire.
It’s a shift agencies need to face head-on to thrive, Gere says.
“If you refuse to deal with the world as it is then you’re not going to ensure the survival of your business,” Gere says.
Millennials sometimes get a bad reputation, Gere says.
She contends they simply tend to be more forceful than previous generations in demanding what they want and need.
Attract and retain millennial candidates
Leverage the variable nature of caregiver hours. The term “flex schedule” resonates with millennials, Davis says.
Frame caregiver positions in those terms to attract millennials who, as a group, tend to value the ability to set their work schedule around their lives and what works best for them as individuals.
Most agencies already need to verify what days caregivers are available to work, so it’s a matter of marketing the position in a way that speaks to that group, Davis says.
Create value for your interview time. Davis acknowledges it can be a challenge to get millennials to show up for interviews and sometimes it can be tempting to simply offer an open door. Instead of telling candidates to show up any time it works for them, Davis suggests offering a few specific time slots to give the impression of high demand while still allowing for the flexibility and individual experience he says really appeals to millennials.
Utilize social media for job postings. Facebook has generated a lot of interest in potential caregivers for his agency, in part because of the number of millennials who use the social media platform regularly.
Davis recommends posting from the perspective of an individual as opposed to that of a business, using a conversational tone and clear calls to action, such as, “Pick up the phone and call this number and ask for me.” This is because Davis says millennials are more likely to respond to something personal.He strongly encourages using Facebook to push people to call instead of visit a website. “Be the contrarian employer and talk to people,” Davis says.
Make it personal and make it about them. One way to do this is to utilize a caregiver newsletter that focuses on the caregivers themselves as opposed to the business, because millennials respond to things that are about them, Davis says. A newsletter focused on caregivers gives millennial employees another place to be recognized and a way to connect personally.“At the end of the day it just boils down to engagement,” Davis says.
Play up the “giving” in caregiver. “More and more research has shown they [millennials] want impact,” Davis says. Sending out emails that outline a broader vision statement for the agency and inspirational stories that help caregivers see the broader impact they have in the community go a long way to fulfilling that need for millennials, according to Davis. — Kirsten Dize (email@example.com)
In the March Issue
Attorney answers agencies’ questions on overtime, wage-and-hour rules
Following a recent DecisionHealth webinar about how to stay ahead of changing overtime and wage-and-hour rules to ensure compliance, agencies asked questions of attorney Angelo Spinola, shareholder with Atlanta-based Littler Mendelson. Here are some of his answers.
Q: After hours on-call question: Can you pay a lump sum for the day/weekend, or does it also need to be paid based upon actual time worked?
A: That’s a great question. Let’s cover on-call for a minute, because this is probably the single biggest area — that and live-in — that home care companies are getting wrong. The answer is that it’s going to depend on whether the employees are exempt or not. If they’re exempt, you can just pay a lump sum, but I’m assuming that you’re talking about employees who are not exempt. If they’re not exempt, meaning they’re entitled to overtime, you cannot substitute the lump sum for actual hours worked. You have to record and pay hours worked and if those hours worked put them in an overtime situation, you’ve got to pay overtime. And on top of that — this is where people really struggle — if you are paying a lump sum, that lump sum has to be included in the overtime calculation.
Consider this example: If an employee got paid $500 in just straight hourly wages, and worked 50 hours. That’s $10 an hour. And so his/her overtime rate would be $15 an hour.
But if you add on top of that a $50 premium for the employee to work on call on the weekends, the $50 premium goes into the pot for the total amount that was paid and overtime is based on that total amount. So now, 50 hours is divided into $550, the employee’s regular rate is $11 an hour, not $10, and the overtime rate is $16.50.
So you can either give on-call to somebody that’s not in an overtime situation and not likely to be in an overtime situation. You switch the on-call responsibilities on and off so the week that they’re on call, they’re just going to work 32 hours and then it’s going to switch to this other LPN or CNA or whoever, and they’re going to work just 32 hours.
The other option is to reduce that premium as much as you can and just pay them hourly. The incentive is the additional overtime that they’re receiving.
Q: How will the new presidential administration change the overtime (40) rule with caregivers?
A: By the overtime rule, I assume you mean the overtime rule for the Fair Labor Standards Act’s (FLSA) white collar exemptions that was supposed to go into effect Dec. 1, 2016, and raise the exempt salary level to $47,476 per year.
We do expect to see a change in position on the overtime rule, but it may not reach resolution in the near future. A Texas federal court blocked the overtime rule from going into effect with a preliminary injunction, and that injunction is now on appeal before the Fifth Circuit. The Fifth Circuit has not ruled yet, so, if it reaches a decision, it could go either way.
The new administration plays a role in that process, because it could decide to withdraw the appeal or lessen its support for the appeal before the Fifth Circuit rules. The new administration also will appoint several new Department of Labor (DOL) representatives who likely will have a different agenda and may abandon the prior efforts to increase the salary levels.
Once we have a confirmed Secretary of Labor, President Trump also could order him to engage in new rulemaking on the white collar exemptions that could reverse the overtime rule’s changes. With respect to the prior exemptions that applied to live-in caregivers and companions, there are legislative efforts to put those exemptions back in place as they existed prior to the Obama administration but we are a long way off before that will happen if it ever does.
Q: What are the regulations on food and board for live-in caregivers?
A: The federal standard on whether you can count the value of lodging or meals/board as wages for live-in caregivers comes from the FLSA and a bulletin issued by the DOL. Basically, the employer has to make sure the following five requirements are met:
- the meals or lodging are regularly provided by the employer or similar employers;
- the employee voluntarily accepts the meals or lodging;
- the meals or lodging are provided in compliance with applicable federal, state, or local law;
- the furnished are provided primarily for the benefit of the employee rather than the employer; and
- the employer maintains accurate records of the costs incurred in furnishing the furnished.
Whether these requirements are met depends greatly on the facts, so I would caution against thinking of these requirements as easy to satisfy. Some states also have separate laws on this topic, so you should make sure to investigate state law as well.
Editor’s note: Sessions like this one are featured at DecisionHealth’s annual Private Duty National Conference & Expo, happening this year Nov. 15-17 at Caesars Palace in Las Vegas. More details coming soon at www.decisionhealth.com/privateduty/.
Accreditation / Quality
Consider getting your agency accredited to increase credibility, improve quality
A New Jersey law that became effective last year requires all home care agencies to obtain accreditation from an approved accrediting body within 12 months of initial licensing or renewal. For agencies, this is a condition of being licensed.
Government-mandated accreditation of private duty agencies is likely to spread as more states adopt regulations for licensing and operating a home care agency. Ensuring consumer protection and quality control in the delivery of home care services is important to state regulators — especially as the number of private duty agencies swells to meet the growing demand for services. Getting accredited could prove to be a significant cost for many agencies.
Consider getting accredited voluntarily
Because the benefits of accreditation are unquestionable, however, many home care agencies are voluntarily obtaining accreditation. Accreditation is a quality control measure for agencies that protects consumers, many of whom are aged and frail. It ensures specific quality standards are met and maintained.
Accreditation goes beyond an agency’s internal measures. It assesses an agency’s ability to meet predetermined criteria and standards established by the accrediting body for quality of operations, client care and employee training and safety.
An accredited agency is viewed by consumers as more credible and reputable. Accreditation substantiates an agency is dedicated to providing the highest level of safe, quality care.
Voluntary accreditation is also a tangible way for an agency to differentiate itself from competition. In addition, it can help reduce an agency’s risk exposure, which may make an agency a better risk for liability insurance purposes.
What do accrediting bodies do?
The accreditation process includes inviting an outside expert to conduct a review of the agency to validate and improve the care, treatment or services provided.
The accrediting body will review the agency’s policies and procedures to measure compliance with a set of standards.
During an on-site survey that’s part of the process, an external reviewer will examine records and conduct interviews
Note the added costs for accreditation
Agencies that seek accreditation should note that the complete process can span six months from application to accreditation.
The accreditation fee varies based upon the size of an agency, which is generally measured by the number of sites and individuals served.
There is also an application fee, which varies by accrediting body, as well as additional costs for travel and fees for the surveyor. Some accrediting bodies have a three-year accreditation period, while others require that accreditation be done annually.
The cost for accrediting a single-site (one location), single-service home care agency servicing 150 or fewer clients can cost as much $10,000 for a three-year period.
Pick the right accrediting body
There are a number of recognized accrediting bodies including the Community Health Accreditation Program (CHAP), the Accreditation Commission for Health Care (ACHC) and the National Institute for Home Care Accreditation (NIHCA).
Accreditation is a long-term investment in your agency’s success, so it’s important to pick the right accrediting body for you. The selection must match your agency’s clinical focus and fit your agency’s mission, vision and culture.
Consider the following:
- Applicability: Are the accrediting body’s standards and processes applicable to private duty care? One size doesn’t fit all when it comes to accreditation standards. Do standards take into account the agency’s unique nature and the population(s) served? The standards and processes mandated for Medicare-and Medicaid-certified agencies are onerous and don’t necessarily apply to private duty agencies.
- Flexibility: Are the accrediting body’s standards rigid and unyielding? Accreditation standards should provide the flexibility needed for an agency to best choose how to meet the standards in a way that works within your agency’s mission, settings, services and staff.
- Education: Will the process be interactive and collaborative? Accreditation is a learning process requiring open and honest communication with staff and clients. The process should be instructive and positive — not an exercise in making check marks on a list or a mechanical review of policies and procedures. Data compiled through the process should be used to educate and train employees and to develop policies, procedures and practices that improve the delivery of services.
- Value: Will the accrediting body bring value to the agency? An accrediting body that is well-known and respected by regulators and insurance carriers will boost the agency’s reputation and assist in driving sales and referrals. An agency should investigate the accrediting body’s reputation by speaking to other agencies that are already accredited by that accrediting body about the process and their opinion of the accrediting body. A list of accredited agencies or testimonials can typically be found on the accrediting body’s website.
Questions to ask an accrediting body
In addition to the considerations listed above, an agency also should question the accrediting body about the standards, cost of accreditation, on-site surveyors and survey, and the accreditation process.
Among the questions many agencies ask of accrediting bodies:
- What is the total cost of accreditation, including all fees, costs and expenses?
- What is the accreditation period?
- Is the accreditation fee paid all at once or spread out over the accreditation period?
- Will the survey be an interactive and positive learning experience?
- How long will the process take from application to survey?
- What is the accreditation decision timeframe following the survey?
- Who are the surveyors, and what are their qualifications?
- Have surveyors been trained to be consistent in their approach?
- Who developed the standards?
- What are the reasons accreditation might be denied?
- What is the most frequent reason accreditation is denied?
- What happens if accreditation is denied?
About the author: Joseph Maddaloni Jr. is an attorney with Lentz & Gengaro LLP in West Orange, N.J. He provides counseling and representation to private duty agencies on employment, business and regulatory matters.
In the February Issue
Gorsuch's Supreme Court confirmation may end Labor's OT, salary threshold rules
Home health and private duty agencies may find a more pro-employer U.S. Supreme Court if Judge Neil Gorsuch is confirmed.
With Gorsuch's conservative vote on cases either currently on the Supreme Court's docket or with the potential to be heard by the high court, agencies could see union funds erode, a permanent end to the U.S. Department of Labor's (DOL) overtime and salary threshold rules and a conclusion to the ambiguity of whether arbitration agreements bar collective actions.
In late January, President Donald Trump announced Gorsuch as the candidate to fill the seat left by the death of Justice Antonin Scalia last year.
Gorsuch, 49, has served as a judge in the U.S. Court of Appeals for the 10th Circuit. He's known to be a stickler for keeping government agencies' powers in check and as a critic of inefficiencies in the court system.
If Gorsuch is affirmed, he likely will vote in line with his predecessor, says Robert Markette, an attorney with Indianapolis-based Hall, Render, Killian, Heath & Lyman.
Markette speculates that with Gorsuch, the court will be back to four liberal justices, four conservative justices and Anthony Kennedy as the wild card casting tie-breaking votes.
Expect this on wage-and-hour issues
One question of particular importance to employers — whether provisions in a valid arbitration agreement can bar employees from filing a collective action for wage-and-hour violations — is more likely to result in a pro-employer decision if Gorsuch is confirmed, Markette says.
The high court already has agreed to hear the three consolidated cases — Lewis v. Epic Systems Corp., Morris v. Ernst & Young, and Murphy Oil USA, Inc. They were supposed to be on the docket for the 2016-17 session but have been pushed to the 2017-18 court term — presumably for fear of a 4-4 ruling.
Attorney William Grob, a shareholder in the Tampa office of Ogletree Deakins and chair of the firm's staffing and professional employer organization practice group, says Gorsuch has previously ruled in favor of the Federal Arbitration Act and is in favor of the efficiencies in the arbitration process.
Grob also sees Gorsuch putting a final end to Labor's persuader rule. The rule forbids employers from giving employees their viewpoint on what unionization could mean for the workplace.
Although a Texas district judge granted an injunction against the enforcement of the ruling, Labor has since appealed that decision.
If the rule is not revoked by the Secretary of Labor, it could be appealed to the Supreme Court.
Labor's joint employer and overtime exemption rules, which are tied up in lower courts, also could land before the Supreme Court. A conservative vote from Gorsuch would likely quash those rules.
Although the Supreme Court denied a petition to hear arguments against Labor's revocation of the companionship services exemption for private duty agencies, Markette has heard rumblings that it could be revisited too.
Gorsuch has sided with employers
During Gorsuch's time on the 10th Circuit, he took a hard line against the National Labor Relations Board (NLRB) in several lawsuits, siding with employers and criticizing the board for overstepping its boundaries in his dissent in NLRB v. Community Health Service d/b/a Mimbres Memorial Hospital and Nursing Home.
In that case, the board argued Mimbres unlawfully reduced employees' hours and had to repay employees for interim earnings and full back pay.
Gorsuch stated that the board's decision, which went against its own actions in many prior cases, effectively sought to "adopt a new rule governing the calculation of back pay in cases where a collective bargaining employer unlawfully reduces the hours of unionized employees." He believed the board effectively sought to "to make new law unlawfully."
Attorney Lindsey Marcus, a partner at Chicago firm Franczek Radelet, P.C., believes this indicates Gorsuch will be skeptical of employment regulators including the Department of Labor when they seek to interpret their own regulations in a way that represents a break from prior interpretations.
"Presumably, that would also mean that if an agency under President Trump breaks with previous interpretation, Judge Gorsuch would review that with the same skepticism," she says.
She also believes Gorsuch will take a pro-employer stance in union cases. She foresees fair share fee issues reappearing before the court.
The Supreme Court agreed to consider the issue in Friedrichs v. California Teachers Association, in which a group of teachers challenged California law requiring them to make payments to the union. They alleged the law imposed a "significant impingement" on their First Amendment Rights.
The lower courts sided with the teachers' association, and a 4-4 split in the Supreme Court last spring affirmed that ruling.
The issue could be revisited once a nine-justice panel is back in place, Marcus says.
"Overturning that decision could largely impact unions by eroding their financial support," she says. "If you can't require bargaining unit members to pay their fair share fees, they're going to have a problem." — Angela Childers (firstname.lastname@example.org)
Marketing & referrals
Use links, original content to improve your online presence and reap big benefits
To obtain the highest search placements, your agency should create the right keywords, ensure there's a steady stream of fresh, relevant content on your site and have plenty of other sites linking to you.
Search engine optimization (SEO) was the top consumer marketing choice for private duty agencies in 2015, according to Home Care Pulse's annual benchmarking study.
The study also revealed that 88% of customers surveyed researched potential agencies online before making a decision, and 90% of home care customers stated they made care decisions based on what online read online.
Effective SEO used to just mean keywords — including the right search terms on a website. But with constantly changing search engine algorithms, having the right search terms embedded in a website is not enough.
Pepper your website with keywords
Merrily Orsini, CEO and president of corecubed, an aging care marketing firm based in Asheville, N.C., says agencies need to make sure they have websites that are carefully peppered with keywords that are important to potential clients in their community. Those keywords will vary.
But such keywords aren't enough. To improve rankings, agencies also must regularly update with original content.
When Jerod Evanich, president of A Place At Home in Omaha, Neb., opened the doors to his agency in 2012, he knew that maintaining an online presence was key. He focused a large amount of the private duty, senior care coordination agency's marketing budget on creating a top-notch website.
He spent time researching what words potential clients in Omaha would be using to search for private duty care
Although Evanich doesn't want to disclose his carefully curated keywords, Imari Adams, a marketing specialist with Alora Home Health Software in Atlanta, Ga., says agencies can find out the most effective keywords in their area by typing into Google relevant words such as "in-home care" or "senior care" to see what competitors pop up.
Adams also suggests signing up for a free Google Analytics account, which will show which keywords led to a visit to your site. This, he says, will show which words should be optimized on your site.
Evanich ensures the keywords are embedded in his agency's website and regularly used in blogs and associated with photos and videos.
The original content the agency creates is particularly key, he adds. Evanich, who employs more than 100 caregivers, makes sure a new blog post is featured on the agency's Facebook page each week, and linked back to the website.
Evanich says although 90% of home care business owners acknowledge that they should be using social media, only about 10% are giving social media the effort that it needs.
In addition to its Facebook page, the agency has a presence on LinkedIn, Google+, YouTube. He also uses local social networking sites including Alignable, a site for local business owners, and Nextdoor, a neighborhood social networking site. Evanich's original content and links between the various social media platforms help drive up the agency's search engine ranking.
Evanich also pays keen attention to Google analytics and tracks his agency's online marketing success each week via the search engine's free account. A Place At Home's efforts have paid off — the agency consistently appears at the top of the page when searching for in-home care in Omaha and the agency will begin franchising this year.
Don't forget about YouTube
Adams suggests that to improve visibility agencies should create YouTube videos with the free editor and stock music on its channel. Alora Home Health Software, which has more than 12,000 software users, helps its clients market themselves online more effectively by having a clear message of who they are, where they operate and what they do.
Adams suggests agencies develop short videos with content that may appeal to potential clients — such as a tour of the agency's offices to communicate its culture or an informational video on wound care — and be sure to link back to the agency's website.
"Linking is sometimes overlooked in SEO," Adams says, "but sometimes linking literally can be the difference between you being No. 5 or No. 1 in an organic search."
This includes linking between your site and your social media accounts and getting others to link to your site, he says.
He urges agencies to seek out others who will link to their website, such as their Chamber of Commerce, local senior websites or community health organizations.
Do this before diving into an SEO project
- Make sure your website is easily navigable. Agencies need to make a clear path for what a website user is supposed to do, Adams recommends. Highlight your mission statement, explain your service offerings, describe why you care about your home care and provide a map of your coverage area.
- Also make sure it's easy for people to contact your agency, he adds.
- Keep an SEO schedule. Evanich checks in on Google analytics and makes sure an original blog item is written every week. He suggests creating a database of topics of interest for inspiration and blocking off time each week for online marketing.
- Be careful not to "over-optimize." Orsini warns that agencies that too liberally litter their site with keywords can be guilty of "stuffing," which can result in a drop in Google search engine rankings as punishment. If the keywords are used so frequently that text is almost unreadable, it's likely to be flagged.— Angela Childers (email@example.com)
From the January Issue
Labor Secretary likely to be a friend to employers, industry experts contend
Many experts believe business owners can breathe a sigh of relief when the new Labor Secretary, Andrew Puzder, takes office.
Bill Ford, president and CEO of human resource and employee relations consulting firm SESCO Management Consultants in Bristol, Tenn., believes Puzder and the Trump Administration will roll back some of the legislation that has been painful for businesses, such as the Fair Labor Standards Act (FLSA) overtime exemption and the Affordable Care Act (ACA).
Ford, who has been advising companies on human resources and wage-and-hour compliance issues for nearly 30 years, also believes audits by Labor will be less aggressive and threatening. He has high hopes that the whole tone and culture of the department will change.
Attorney Eli Freedberg, a shareholder in the New York City office of law firm Littler Mendelson, predicts that the FLSA changes doubling the salary threshold for exempt employees to $47,476 and the more stringent definition of who can be classified overtime exempt will be dead under Puzder.
"Puzder has a real-world business background," and there's a glimmer of hope that some of these regulations may be analyzed by someone who knows whether they're workable from a business perspective, says Freedberg, who focuses his practice on defending wage-and-hour class actions.
Who is Andrew Puzder?
Puzder, 66, hails from the fast-food industry. He has served as CEO of CKE Restaurant Holdings, Inc., the parent company of West Coast burger chain Carl's Jr. and Hardee's.
In his role of CEO, he publicly opposed sweeping changes to the FLSA that were set to take place Dec. 1, 2016, until a federal judge's injunction stalled implementation of the measure.
He also testified before Congress in 2015 about his concerns regarding the Affordable Care Act's (ACA) definition of a full-time employee as one who works 30 hours per week. He argued the law would force employers to make employees part time, effectively lowering wages for workers and reducing customer spending.
Puzder began his career as an attorney after graduating from Washington University School of Law in St. Louis in 1978. After the founder of Carl's Jr., hired him as his personal attorney during a financial crisis, he spearheaded a deal between the fast-food chain and Fidelity National Financial, Inc.
He went on to manage Fidelity's legal department for several years before taking over CKE's legal department. He was named president and CEO of the company in 2000.
As the head of a company with more than 3,000 franchisees, Puzder has been endorsed by the International Franchise Association for his business acumen and knowledge of the issues facing today's employers. The association hopes Puzder focuses on rolling back the expansion of joint employer liability, which the U.S. Department of Labor (DOL) amplified via an Administrative Interpretation in January 2016, effectively exposing more franchisors to liability for the acts of its franchisees.
The guidance suggests that franchisors — including those who franchise private duty agencies — could be considered a joint employer for providing guidance to franchisees on employment issues or maintaining online systems for hiring and screening applicants.
Some regulations remain with Puzder
While some Labor regulations won't come to fruition, it's unlikely that Puzder will make big changes the companionship services exemption, Ford says, because agencies have already adjusted to that change.
Ford also foresees a halt to proposed federal mandatory increases in minimum wage and federally mandated paid sick or other leave.
And he also believes the increases in fines for violations of Occupational Safety and Health Administration (OSHA) rules may be brought back to pre-Obama levels, and that OSHA investigations may focus more on workplace safety and training rather than penalties.
Prepare: OT changes likely not coming
Over the past year, many home care agency owners have put in extra hours trying to reconfigure job classifications to prepare for FLSA overtime changes — but those changes were placed indefinitely on hold when a federal judge in late November granted a nationwide preliminary injunction against that rule.
The rule had clarified which salaried employees were entitled to FLSA minimum wage and overtime pay protections, and modified the minimum annual wage for salaried workers from the current rate of $23,660, or $455 per week, to $47,476, or $913 per week (PDI 1/17).
Some agencies already may have implemented changes by moving certain workers from salaried to hourly workers or by raising certain exempt workers' wages to meet the new threshold that was supposed to take effect Dec. 1.
Under Puzder and Trump, the OT changes are unlikely to ever occur, Freedberg says.
A few of Freedman's clients had notified workers of the forthcoming changes but then walked back from those promises in increased salary. That obviously can hurt morale, he says.
"We all want to be good to our employees … but it's hard to justify that increase in labor costs if you don't have to," he says. He suggests that employers who have had to break the promise of a raise or reclassification give employees a voice to vent their frustrations and be responsive to their concerns.
Agencies struggling with the issue of reducing salaries need to have frank conversations with their workforce, Ford says. He does, however, believe most employees who were being moved from salaried to hourly employees will be happy to remain in their salaried positions.
"A lot of people appreciate the idea of a salary and are more proud of the efforts and achievements," he says. "But change is going to take some strong leadership and frank communications." — Angela Childers (firstname.lastname@example.org)
Related link: Read Puzder's testimony about the ACA at http://bit.ly/2iMEBZO.
Trump transition: New HHS, CMS heads could bring change to ACA, value-based projects
The direction of major health care programs may be a step closer to course reversal after President-elect Donald Trump tabbed new leaders for two key federal posts.
Trump named Rep. Tom Price, R-Ga., a six-term congressman, former orthopedic surgeon and long-time Obamacare opponent, as his pick to lead HHS.
To lead CMS, Trump chose Seema Verma, a consultant who led the implementation of Indiana's Medicaid expansion during Vice President-elect Mike Pence's time as governor.
While the exact restructuring of federal programs, including the nation's vast insurance infrastructure, is likely to remain under wraps until Inauguration Day, previous work indicates the possibility of significant course change.
Price has been "a vocal advocate of repealing the Affordable Care Act" (ACA) since the law's inception, says Michael Strazzella, practice group leader and senior principal, federal government relations, with Buchanan, Ingersoll and Rooney, Washington, D.C.
With his nomination as HHS head, "he's been given a clear directive" to move forward with repeal, Strazzella adds.
In the past, Price also has been in favor of privatizing Medicare, says Daphne K. Saneholtz, attorney with Brennan, Manna and Diamond in Columbus, Ohio. "All this tells me that he will move HHS in a direction completely opposite of where it's been going under the Obama administration," Saneholtz says.
In May 2016, Price introduced the Empowering Patients First Act into the House of Representatives. The bill would repeal the ACA and replace it with a program centered largely around tax credits, the creation of high-risk pools, cross-state insurance plans and other elements. The bill would allow individuals to opt out of federal insurance programs, such as Medicare, and use tax credits to pay for private insurance coverage.
The fate of the Center for Medicare and Medicaid Innovation (CMMI), a product of the ACA that's been a springboard for many value-based programs, also remains uncertain. "We know that Rep. Price is not a fan [of CMMI]," Strazzella says.
More than 170 GOP members of the House co-signed a Sept. 29 letter to CMS written by Price sharply criticizing CMMI for Medicare demonstrations. Price has been scornful, for instance, of the bundled payment model for hip and knee replacement, which CMMI has imposed in 67 geographical areas.
Verma has experience in Indiana
Verma, the nominee for the new head of CMS, has worked on health care in Indiana.
Under the Indiana Medicaid expansion, she engineered a program centered around high-deductible plans and health savings accounts (HSAs).
"Price and Verma are probably really going to shake things up," Saneholtz projects. — Richard Scott (email@example.com)
Top 10 methods for recruiting caregivers
Home care agency owners are relying more on job sites such as Indeed to post open caregiver job openings. Recent data show that 17.0% of survey respondents compared with 7.3% the previous year, said they rely on Internet websites such as Indeed.com as a top caregiver recruiting website. The 2016 data are based on responses from 701 home care agency providers.
From the December Issue
Temporary injunction stops Labor's OT rule from taking effect nationwide Dec. 1
Agencies that already increased employees' salaries to avoid a new federal requirement to pay them overtime beginning Dec. 1 should strongly consider whether that decision still makes sense.
A recent court ruling temporarily stops the requirement from taking place — and home health experts contend that under the Trump administration, the requirement might not come at all.
Keeping those employees' salaries so high might hurt agencies' bottom lines, but returning pay to old levels might cause employees to quit, notes attorney Eileen Maguire of Indianapolis-based Gilliland, Maguire & Harper.
A federal judge on Nov. 22 granted a nationwide preliminary injunction against the Labor Department's new overtime rule. On Dec. 1, the Justice department — on behalf of Labor — filed a notice to appeal the temporary injunction to the U.S. Circuit Court of Appeals.
For many businesses including home health agencies and private duty agencies, the injunction is significant, because the rule would have more than doubled the salary threshold to be entitled to overtime.
The overtime rule clarified which salaried employees were entitled to Fair Labor Standards Act minimum wage and overtime pay protections, and modified the minimum annual wage for salaried workers from the current rate of $23,660, or $455 per week, to $47,476, or $913 per week.
Agencies found to have violated the requirement would have been subject to civil penalties of up to $1,894 per violation, plus back wages for the affected employees. Agencies found to be willfully violating the laws could have been prosecuted criminally and fined up to $10,000.
How has the ruling impacted agencies?
Focus Health, a private duty agency in Selinsgrove, Pa., has nine employees in its scheduling department earning annual salaries of about $40,000. Prior to the temporary injunction, they would have been eligible for overtime beginning Dec. 1.
Co-owner Bobbyetta Ganunis had instructed them not to work more than 40 hours a week. Some had been accumulating extra hours, mostly by answering emails from home. Ganunis also had hired a part-time scheduler to handle any scheduling work that would have meant overtime hours for her full-time schedulers.
Now that the court has blocked the rule, Ganunis decided not to change her instructions. Rather than eliminating the part-timer, she continues to employ her for scheduling work when an extra hand is needed and as a home support aide for agency clients.
While some agencies made staffing changes in advance of the requirement, others increased salaries.
Georgetown County (S.C.) Board of Disabilities and Special Needs raised salaries of two employees by "a few thousand dollars" each to make them ineligible for overtime under the rule's new threshold.
But even if the rule is made permanently inoperative by the court or by a Trump administration decision not to defend it, the agency won't take back the raises.
To do so would have a negative effect on employee morale that would far outweigh the savings, says Elizabeth Krauss, executive director of the 250-client agency.
Indeed, agencies that decide to lower employees' salaries should be wary, contends attorney Robert Markette of Indianapolis-based Hall, Render, Killian, Heath & Lyman. "They're going to feel like you're jerking them around, and that's never a good thing."
On the flip side, Maguire says, "I am already hearing from agencies who reclassified exempt salaried employees to nonexempt hourly status say that these same employees are happy about the court's ruling and are hoping they will be changed back to exempt salary status — even if it means receiving a salary less than $913 per week."
Judge wants Congress' take
Twenty-one states including Nevada and Texas sought the preliminary injunction. They contended the requirement wasn't good for American workers; they say the requirement would lead employers to cut workers' hours.
On Nov. 22, U.S. District Judge Amos L. Mazzant granted the nationwide injunction. He said Labor's rule was "contrary to the statutory text" as well as Congress' intent.
It appears the Court felt Labor's rule "made too much of a financial and political impact across our nation without Congressional input," Maguire says. It wasn't necessarily saying Labor's salary increase was a bad idea — though it agreed that it would cause the state plaintiffs financial harm. Instead, the Court contended that such a salary increase needed to come from Congress.
"Employers will have to wait and see how Congress and their respective state lawmakers will respond to the public pressure for higher wages," Maguire says.
Actions your agency should take
Give advance notice to employees if you decide to lower their salaries. These requirements
vary by state. For example, Maguire says, Missouri agencies must provide 30 days' advance
written notice for reductions in pay.
Those who don't follow their state's advance notice requirements could face significant financial penalties.
"Even agencies in states that do not have specific advance notice requirements may face claims under wage payment laws for failing to pay promised wages," Maguire says.
- Be wary about whether reducing pay could cause employees to quit — and potentially seek unemployment compensation. Although state unemployment laws and regulations vary, typically employees who quit or resign aren't eligible for unemployment. However, it's hard to say how the circumstances involving the judge's ruling would play out in various states. "So many times, the rulings for unemployment benefits favor the employee regardless of the circumstances," Maguire says.
- Don't forget the lower threshold that remains in effect.The existing threshold, for now, remains $455 per week. Also in effect: The current duties test and salary basis requirements for employees to be exempt from overtime, Maguire says. — Josh Poltilove ( firstname.lastname@example.org) and Burt Schorr ( email@example.com)
Related link: Read the temporary injunction at http://bit.ly/2gbxyeb
Experts: Death of companionship, overtime rules seems certain in new Congress
There are signs that the companionship rule, which requires private duty providers to pay their home support workers overtime, won't survive for long under a Republican-controlled Congress and White House.
Also hanging by a thread is the Affordable Care Act's employer mandate, which requires employers with 50 or more full-time equivalent workers to provide health coverage or pay a penalty. An executive order from president-elect Donald Trump directing the IRS to end penalties for non-compliant employers would effectively defang the mandate, says Bill Dombi, vice president for law with the National Association for Home Care & Hospice (NAHC).
Another opening for congressional Republicans and the incoming Trump administration has been provided by a federal district court judge in Texas who has temporarily blocked a Labor Department rule requiring employers to pay overtime to workers who earn less than $47,476 per year ($913/week) compared with the current threshold of $23,660 annually.
Senate Health, Labor, Education and Pensions Committee Chairman Lamar Alexander said in a statement on the court decision that it gives President-elect Trump and Congress an opportunity in 2017 to revise the destructive overtime rule "in favor of a more reasonable, balanced approach to increasing overtime pay."
During his campaign, Trump promised a reduction of federal regulations, but only in general terms.
Congressional Republicans, on the other hand, are ready to reintroduce bills in the new Congress that would revoke both the companionship rule and the overtime rule, according to GOP congressional aides.
As originally introduced in 2015, the bill (H.R. 3860) to erase the companionship rule is co-sponsored by 18 GOP members of the House and Senate.
A separate bill to do away with the overtime rule (H.R. 6094) was introduced in September by Rep. Tim Walberg (R-Mich.) and will be reintroduced in the new congress.
The Michigan Republican acknowledges that federal overtime rules need to be updated, but contends the Obama administration has refused to work with House Republicans "on ways to delay the rule and provide much-needed relief for small businesses, nonprofits and colleges and universities nationwide," Walberg said at the time he introduced his bill.
With Republicans in control both houses of Congress and the White House, attorney Robert Markette with Hall, Rendon, Killian, Heath & Lyman in Indianapolis, who represents private duty and home health providers, is optimistic that Republicans will vote in both Houses to cancel the companionship rule as well as the overtime rule and that Trump will sign the bills.
If the bills stall in the Senate, where Democrats retain leverage despite their minority status, Trump's Labor Department could pursue administrative changes in the wage-and-hour rules, notes attorney Ryan Glasgow in the Richmond, Va., office of Hunton & Williams.
But while it wouldn't take long for the Trump administration to propose such changes, "the notice-and-comment process would take many months, if not years, so employers shouldn't expect immediate relief from the rules," warns Glasgow, a wage-and-hour specialist.
Update on ACA's employer mandate
Another objective of the Trump administration and Congressional Republicans is to eliminate the employer insurance mandate that has dramatically impacted many businesses including private duty agencies.
But Trump didn't mention the ACA at all during a Nov. 21 video message listing actions he expects to take on his first day in office, Dombi notes.
And because Republicans remain uncertain about what would replace the ACA, it could be months before a bill is ready, he notes.
Private duty providers have a big stake in quick action — NAHC estimates up to 90% of them are required to provide health care coverage, according to a NAHC survey.
One consideration: Democrats still have enough Senate votes to prevent majority Republicans from cutting short a certain Democratic filibuster of an ACA repeal, as has occurred with previous GOP attempts. However, Republicans have a way around an impasse by including repeal of key ACA parts in a budget reconciliation bill.
Budget reconciliation bills need only 51 votes to pass as opposed to the 60 needed to shut off debate. Moreover, the Senate parliamentarian ruled this year that repeal of the employer mandate is eligible for inclusion in such a bill, Dombi points out. — Burt Schorr ( firstname.lastname@example.org)
Actions agencies are taking because of the ACA
Below is a list of actions that agencies said they are taking because of the Affordable Care Act (ACA) employer mandate. The results are taken from the 2016 Private Duty Benchmarking Study by Home Care Pulse which includes responses from 701 home care providers.
From the November Issue
Fraud & abuse
New OIG report identifies numerous fraud issues involving personal care aides
Perform surprise visits during personal care aide shifts to determine if your employees are at clients' homes when they're scheduled to be, thus avoiding the possibility of Medicaid paying out for services not performed.
A report released Oct. 4 by the HHS Office of Inspector General (OIG) makes clear agencies should have in place strong oversight programs to prevent committing fraud related to Medicaid-funded personal care services, experts say.
Making sure aides are where they're supposed to be is one thing an agency should include in its oversight program, says Ginny Kenyon, a home care consultant and principal of Seattle-based Kenyon HomeCare Consulting.
Investigators with the OIG say they uncovered $600 million in questionable billing practices over a roughly four-year timeframe and that most of the fraud was committed by personal care aides.
If an agency is found to be out of compliance, within 60 days it must report overpayment, says Tom Harper of Indianapolis-based Gilliland, Maguire & Harper, P.C. "If you don't and it's intentional, that can result in penalties or even criminal charges in some instances."
The OIG report covers Medicaid billing from November 2012 to August 2016 and is critical of the Medicaid program for not cracking down on persistent fraud.
In November 2012, for example, an OIG report stated that personal care services had "significant and persistent compliance, payment and fraud vulnerabilities" — including documentation errors — that demonstrated a need for CMS to take a more active role with states to combat the problem.
The latest OIG report reiterates a recommendation that CMS implement the following: Establish minimum federal qualifications and screening standards for personal care workers including background checks; force states to enroll or register all personal care attendants and assign them unique numbers; and require that personal care claims identify the dates of service and the attendant who provided the service.
The OIG's examination of personal care services will continue next year as well, according to its work plan published Nov. 10.
The OIG plans to issue a data brief providing an overview of personal care services data collected over the past several years. Within the brief will be information on state and federal investigations, indictments, convictions and recoveries involving fraud and patient abuse or neglect, according to the work plan.
Report: Fraud comes in several forms
Since 2012, the OIG has opened more than 200 investigations nationwide for personal care services involving fraud and/or patient harm or neglect, the latest report states. The OIG "anticipates that its enforcement efforts will continue" in this area.
The most common fraud schemes involving Medicaid-funded personal care services take the form of billing for services never provided and for unnecessary services, the OIG report states.
The fraud predominantly involves "consumer-directed care," services where personal care aides are employed directly by the Medicaid recipient. But the OIG has found such fraud also is found when aides are employed by a company.
To avoid such abuse, agencies should closely monitor aides and question clients and their families to find out if services billed to Medicaid were actually performed, Kenyon says.
Examples of fraud the OIG report cited:
- Caregivers in Washington persuaded a beneficiary to sign blank timesheets and submit claims for periods when the beneficiary was out of the country.
- The owner of one Alaska agency authorized employees to submit false timesheets for services not provided to Medicaid recipients. The agency also billed Medicaid for services provided by employees who weren't legally authorized to bill Medicaid.
- An attendant in Missouri submitted claims for providing care to four beneficiaries simultaneously while working a full-time job.
More ways you can prevent fraud
- Perform surprise visits monthly. Surprise visits during personal care shifts should be performed at least once a month by nurses or physical therapists to ensure services are rendered and when they are scheduled to be rendered, Kenyon says. This should be in addition to having employees use GPS or calling from a client's home phone to verify a shift has been covered.
- Revisit your oversight program. Among the steps agencies should take: Designate a compliance officer and compliance committee, and have disciplinary guidelines that are well-known to your agency's personnel, Harper says.
Have a good grievance and whistle-blower program in place to encourage people, even
employees, to report fraud. Without it, fraud could go undetected, Harper says.
This program must be taken seriously, and there can be no risk of retaliation. People reporting fraud must feel they're protected and their reporting is meaningful, that the issue will be investigated and a fair and objective determination will be made, industry experts say. Noncompliance should be corrected immediately.
Conduct background checks on new employees. Background checks are essential, even
in the absence of state regulation, industry experts contend. Without them, there is a greater
risk of liability, Harper says.
Updated background checks on existing employees can be helpful (they are also expensive); some states require them after a period of time, like every five years. — Yvette Hammett ( Yvettehammett28@hotmail.com)
Making good use of clients' feedback is invaluable to your agency's success
By Caity Camp
Clients have unique circumstances and specific sets of expectations for the care they receive. Meeting those expectations can be a challenge.
This was the case when Home Care Pulse CEO Aaron Marcum, then owner of his own home care agency, received a third request in a short timespan to provide a new caregiver for one of his clients.
The client didn't offer an explanation, and initial inquires as to what was wrong didn't turn up clues. The client was otherwise pleasant and gave no specific complaint.
It wasn't until after Aaron implemented a system to capture feedback from his clients that the problem was revealed: She was unhappy with how caregivers prepared her eggs, and she wanted her sheets ironed before her bed was made.
Though each client has unique expectations, the biggest challenge can be that we don't know what those expectations are — not that we aren't able or willing to meet them.
Feedback is critical to your success
In the landscape of today's home care market, effectively capturing and addressing feedback from clients isn't a luxury — it's essential to success.
Satmetrix research shows 91% of marketing leaders believe that in two years they will be competing primarily on the basis of the customer experience. Feedback is critical to the process of improving your client experience.
Although capturing feedback can be intimidating at first — no one likes to hear about their flaws — being vulnerable with clients will show them you value their concerns and are willing to make changes.
How your clients' eggs are cooked or whether their sheets are ironed may seem like trivial matters, but it's often the small details that make or break satisfaction. In Aaron's situation, he was able to respond and provide services that met this client's needs, and she remained a client for months to come.
Methods for capturing client feedback
Home Care Pulse, as part of its 2016 Home Care Benchmarking Study, surveyed agencies nationwide and asked what methods they use to gather feedback.
Popular methods include mailed surveys and interviews conducted by a third party. More than 10% of agencies aren't capturing client satisfaction.
Note that online surveys can be easy to set up but typically have a lower response rate. Mailed surveys may perform better but can get lost with other mail, and they can be difficult for seniors to complete and return.
Home Care Pulse research shows telephone surveys are the most effective method for quickly reaching clients and gathering helpful feedback.
As for feedback quality, third parties will be able to provide the most useful and unbiased feedback.
Actions to take when you get feedback
Once you start receiving feedback, coordinate with your team so you can act. You'll need to discuss how to make changes based on negative feedback and how to use positive feedback to identify and leverage your strengths.
Some negative feedback may result in a specific change that can be made immediately to help an individual client.
Other feedback may impact all clients and require larger operational changes. These changes will take time and coordination to implement.
Five examples of negative feedback
"The office didn't call to check in. There was no communication unless I initiated contact."
Communication problems between clients and office staff can quickly create frustration. Analysis of Home Care Pulse data shows satisfaction with office staff had the closest correlation with a client's likelihood to recommend services to a friend.
Home Care Pulse users have found setting time aside to contact their clients weekly and review their upcoming schedules helped improve ratings in this area.
"The problem was that the agency sent a different person every time, and my daughter had
to re-explain everything, so we put the service on pause for a while."
The feedback you get can reveal sources of lost revenue. While it's great to know why a client has stopped services, Home Care Pulse customers have found that gathering feedback frequently is the most effective way of preventing a situation like this.
"My husband couldn't be himself in his own home because he was intimidated by his caregiver."
Sometimes a caregiver's personality is not a good match for a client. Those who use Home Care Pulse's program have found that coordinating regular meetings where feedback can be shared with staffing coordinators can help resolve situations where caregivers aren't well-matched with clients.
"Our caregiver does the bare minimum and doesn't seem interested in offering companionship."
You may be struggling with caregiver shortages and feel like you don't have the luxury to be very picky about whom you hire. However, where possible, seek caregivers who understand and share your purpose. Starting with your job listing all the way down to interviews and orientation, look for opportunities to emphasize your purpose and seek caregivers who share it.
"Our caregiver is eager to help, but acts less confident when helping my mother bathe or
when helping with basic food preparation."
Don't underestimate the importance of ongoing training. Not only will training help caregivers be more confident, it will translate to happier clients and go a long way to helping retain your caregivers. Home Care Pulse users have reported that putting in place a better organized or higher quality training program can, over time, increase client satisfaction and even improve caregiver retention.
About the Author: Caity Camp is the content writer at Home Care Pulse. She gained her writing and editing experience while studying for her bachelor's in English at BYU-Idaho and while working as a copywriter in marketing following graduation.
Methods agencies use to gather client feedback
To gather information about client satisfaction, about 40% of agencies mail surveys sent by internal staff. That's according to Home Care Pulse's 2016 Home Care Benchmarking Study.
|Ways to gather client satisfaction info||Percentage of respondents|
|Mailed surveys sent by internal staff||40.4%|
|Mailed surveys sent by a third-party satisfaction firm||10.1%|
|Online surveys created and sent by internal staff||3.7%|
|Online surveys created and sent by third-party satisfaction firm||2.8%|
|Live telephone interviews conducted by a third-party satisfaction firm||36.8%|
|Currently do not capture and measure client satisfaction||10.7%|
Source: 2016 Home Care Benchmarking Study, Home Care Pulse, Rexburg, Idaho
From the October Issue
Be ready for Labor's new ‘overtime rule' or risk thousands of dollars in fines
Conduct an internal audit immediately to determine if your agency's employees are properly classified as exempt from new U.S. Department of Labor (DOL) overtime requirements. It's vital to consider employees' actual job duties — not their job descriptions.
On Dec. 1, agencies nationwide will be expected to comply with Labor reforms doubling the minimum salary for exempt employees. Agencies found to have violated the requirement are subject to civil penalties of up to $1,894 per violation, plus back wages for the affected employees. Agencies found to be willfully violating the laws can be prosecuted criminally and fined up to $10,000.
Labor's new "overtime rule" clarifies which salaried employees are entitled to Fair Labor Standards Act minimum wage and overtime pay protections, and modifies the minimum annual wage for salaried workers from the current rate of $23,660, or $455 per week, to $47,476, or $913 per week (PDI 7/16).
Eileen Maguire, a partner in the Indianapolis law firm Gilliland, Maguire & Harper, P.C., says agencies that haven't prepared for this change need to audit their workforce now to determine whether exempt employees truly are exempt under the Fair Labor Standards Act, and find out if exempt employees' salaries will meet the new threshold.
Agencies must look at each individual's job duties to see if it meets the test for exempt status, which Labor has indicated it will examine closely in the coming years, Maguire says. (View an exemption questionnaire, broken down by employee type, at http://bit.ly/2dIKute.)
At Cypress HomeCare Solutions, LLC, in Phoenix, Ariz., operations manager Erin Ditto has spent about half her time since May determining workers' job responsibilities and whether the employees are exempt.
She spoke with all employees to determine how much time is spent performing particular job duties and explaining why particular positions may be reclassified.
She then began updating all job descriptions — including whether positions were exempt — and says the increased clarity has helped employees understand why changes may need to be made.
Focus on administrative duties test
For private duty agencies, Maguire suggests particular attention be paid to employees classified as exempt under the administrative duties test or the outside sales test.
"Under the administrative exemption, an employee really needs to be assisting in the running of the agency and not providing services," she says.
Maguire cautions agencies from using the outside sales exemption, noting that individuals who are solely seeking referrals may not be truly exempt and outside salespeople with a fixed office — including a home office — may not meet the test.
While private duty agencies are unlikely to have many professional exemptions, Medicare home health agencies will. However, agencies must consider what is required to meet that exemption, Maguire notes. For instance, social workers performing tasks related to their license can be classified as exempt — but only if they have a master's degree.
LPNs aren't exempt, but RNs are as long as the agency isn't paying them on a per-visit basis.
Take gray areas into account
One of Cypress' positions, which involved some overtime, was in a gray area of exempt vs. nonexempt.
After looking at the agency's goals for growth, Ditto determined it would make more sense to hire an additional person at an hourly rate to minimize overtime and employee burnout.
Another position — a human resources assistant position — also didn't neatly fit under a particular category. That led Ditto to create a new position that increases responsibilities to include administrative functions, training and skills coordinating. That position, she says, will most likely be classified as exempt.
A mistake may be expensive
Labor believes at least 700,000 jobs are wrongly classified as exempt, and an additional several million are expected to be reclassified as non-exempt as a result of the minimum salary change. And failure to comply with the Fair Labor Standards Act can be expensive.
If Labor receives a single complaint, it will quickly audit an agency's pay practices, says Mark Tabakman, a partner in the Princeton, N.J. office of Fox Rothschild, LLP.
"It's so easy for the DOL to focus in on the exemption issue, because all the investigator has to do is ask for is ask for a listing of salaried employees, go down the line, and ask, ‘What does this person do?' " he says. For agencies that misclassified an employee but raised that person to the $913 per week salary, the liability will be based on that higher wage.
Steps to prepare for OT rule
- Focus on job duties when analyzing positions. "Job descriptions and job titles are not going to win the day," Maguire says. "You want to really review exactly what an employee does."
- Make sure you're ready to account for employees' hours worked beginning on Nov. 28 if your workweek begins on a Monday. Dec. 1 is on a Thursday this year.
- Create a good timekeeping system. Agencies should be prepared for the management oversight that will be involved to limit overtime and ensure employees are paid for all hours worked, Tabakman says. He advises agencies to implement policies forbidding overtime work without prior authorization. He also suggests using a punch-in, punch-out system so employees can't claim they worked late or never took lunch.
- Notify employees immediately of any compensation changes. Some states, such as Missouri, require employers to provide notice 30 days before any pay rate changes.
- Know how to calculate overtime correctly. With hourly employees, agencies must be sure not to include bonuses, stipends or other compensation in the regular rate of pay when paying overtime, Maguire says. — Angela Childers ( email@example.com)
Home care agencies share referral, outcome benefits of working with ACOs
The efforts T.O.N.E. Home Health Services, Inc. took to successfully become a 5-star agency led accountable care organizations (ACO) to take notice. And the agency is reaping rewards from its relationships with ACOs. In just a few months, the agency's daily census went from 160 to 250 patients due to referrals and star recognition.
T.O.N.E. is a provider for five ACOs in the greater Detroit area, including the Michigan Pioneer ACO.
As the number of ACOs increase, so do the opportunities for agencies to work with them. In 2015, Michigan Pioneer reported shared savings of $1.4 million and an overall quality score of 87%, a score given by CMS using 33 quality measures that is tied to the amount of shared savings the ACO can potentially receive.
Medicare introduced its first ACO program five years ago. According to a recent study in the journal JAMA Internal Medicine, more than 700 ACOs exist in the U.S. today, covering 23 million Americans. The highest concentration of Medicare ACOs and beneficiaries are in the southern states and in the Midwest, according to CMS, though the East Coast has the largest percentage of Medicare patients enrolled in managed care programs.
ACO leads to better care coordination
While ACOs still have their share of critics, DecisionHealth checked in with several agencies nationwide involved with different types of ACOs. The goal: To learn about their involvement and gather advice for other agencies interested in working with ACOs or other bundled payment models.
In 2014, T.O.N.E. sought a relationship with Reliance ACO, an independent physician-based ACO.
T.O.N.E.'s CEO, Salim Bhinderwala kept a close eye on Medicare's list of ACOs and let it be known the agency was interested in being a provider. When the ACOs began going through the vetting process for home care providers, he was prepared to show his agency's cost per episode and clinical processes aimed at keeping high-risk patients out of the hospital.
During meetings with ACOs, the Royal Oak, Mich.-based agency stood out based on its successful patient outcomes and its Medicare 5-star rating, which Bhinderwala says the company was able to achieve by emphasizing quality and the importance of communication.
The agency implemented a three-part communications standard be completed for every patient. The standard requires clinicians to analyze each patient using SBAR: situation, background, assessment, recommendation; the talk-back method; and motivational interviewing. This has enabled the agency to deliver care more efficiently while reducing medical episodes, particularly in high-risk patients, he says.
When T.O.N.E. first started working with the ACO its re-hospitalization rates got worse because the ACOs tend to funnel their highest-risk patients — patients who previously had as many as 65 hospitalizations in a year — to the agency. But since then the agency's communications standards and quality of care have helped drop hospitalization rates for many of those patients by more than half.
For T.O.N.E., one of the biggest benefits to come from working with ACOs is the availability of physicians — this has helped prevent hospitalizations for high-risk patients, Bhinderwala says. "Now we can get a physician on the phone when the patient has back pain of 5 out of 10, which was never the case for most our past experience."
ACO led to wound management protocol
In upstate New York, the Accountable Health Partners ACO — not a Medicare ACO — has operated for nearly five years and covers 200,000 people. It works closely with home health and has invited agency representatives to be an integral part of the ACO.
Denise Burgen, chief quality and innovation officer for University of Rochester Medicine Home Care, says that as a member of the ACO, she recently spearheaded a multidisciplinary team that created a standardized protocol for wound management. The ACO expects everyone involved to adhere to the guidelines, and though there's no data available yet, Burgen says the ACO is optimistic that the protocol will have a positive effect on reducing infections and re-hospitalizations in wound patients.
View wound protocols at http://bit.ly/2dhGDAn.
The ACO also has focused on communication between the agency and providers about their heart failure patients. That led to a 25% drop in readmission rates for these patients in the past three years, she says. — Angela Childers ( firstname.lastname@example.org)
Related link: Read the JAMA article at http://bit.ly/2dSfH9C .
From the September Issue
CMS final rule calls for agency policies on pandemics, terror attacks
An average agency likely already has determined what to do in the event of a major storm. But a new emergency preparedness rule posted Sept. 8, 2016, on the Federal Register implies that as part of their plans, agencies should take an even bigger step — considering things such as pandemics or terror attacks.
In the event of a pandemic, an agency might simply be tasked with continuing to care for clients, says attorney Robert Markette of Indianapolis-based Hall, Render, Killian, Heath & Lyman. But in event of a terror attack, some situations might result in an agency waiting before providing care.
Overall, agencies will need to develop or at least update their emergency preparedness plans in the wake of the new rule creating broad disaster readiness requirements for the entire health care industry. The rule, "Emergency preparedness requirements for Medicare and Medicaid participating providers and suppliers," takes effect Nov. 15, 2017.
First proposed in December 2013, the rule creates emergency preparedness Medicare Conditions of Participation (CoPs). That means agencies found in noncompliance during a survey could be cited.
Participating providers and suppliers must meet these requirements:
- Develop an emergency plan based on a risk assessment.
- Develop and implement policies and procedures based on the emergency plan and risk assessment.
- Develop and maintain a communication plan that complies with federal and state law.
- Develop and maintain training and testing programs. They must include initial and annual training as well as conducting drills and exercises or participating in actual incidents that test their plan.
CMS contends agencies accredited by The Joint Commission will spend $4,990 preparing for the requirement, while other agencies will spend $6,380.
Some experts contend those figures are low. For instance, Markette says CMS appears to have vastly underestimated how many hours it will take to develop policies and procedures.
Prepare now for the CoP
Assess your risks. Identify how your agency's essential business functions and ability
to provide services could be impacted by those events. Do this based on the risks to your
office and the community in which it is located. Consider the extent of your service area
— including branch offices.
Agencies can evaluate all their current emergency protocols by downloading a new emergency preparedness planning guide from the U.S. Centers for Disease Control and Prevention (CDC). View the guide and other CDC resources at http://1.usa.gov/1pLjCsM.
- Review your existing assessment if you have one. CMS expects agencies to revise and update their assessments.
- Review and update your plan frequently. CMS believes agencies already are doing so periodically, but it expects agencies to review emergency preparedness plans, policies and procedures at least annually.
- Create a running list of high-risk clients who might need assistance during an emergency. Provide this list to emergency management officials if such an emergency occurs, Markette says. — Josh Poltilove ( email@example.com )
Related link: View the final rule at http://bit.ly/2caCkEa .
Use content marketing to drive your agency's lead generation efforts
Identifying the top five home care issues your agency's current clients consider important will help your agency develop valuable content and drive engagement with clients, referrals and leads.
Asking current clients what topics they are most interested in learning more about or what health or home care-related issues they need more information on will help agencies identify what content — blog articles, newsletter, social posts or email campaigns — they should be creating, says Amy Selle, managing director for corecubed, a marketing agency in Louisville, Ky.
While email newsletters, social media and video tend to be a challenge for agencies without dedicated marketing staff or the expertise to distribute it correctly, Selle says a transformation is taking place. "I see that changing," Selle points out. "They are seeing the value. It is how we communicate today."
Boost posts by targeting certain ages
Private duty agencies are engaging in blogging more, because it gives them the opportunity to distribute educational content that helps clients, Selle says.
Marketers can write blog articles about coping with a chronic disease like dementia, diabetes, CHF, arthritis or macular degeneration. On caregiver issues, they can address caregiver guilt, burnout, financial strain and self-care. Blog articles can also focus on paying for long term care, VA benefits and what Medicare does and does not pay for, says Selle.
Blog articles increase the likelihood agencies are found by potential clients and positions the agency as an authority on home care.
Using a personal or business story engages potential clients on an emotional level and makes it more likely they will to sign up for services, says Leigh Davis, principal with Davis+Delany, a home care consulting firm in Fayetteville, Ark.
Direct-to-consumer content has a specific formula, says Steve Weiss, owner of Hurricane Marketing. "Facts tell. Stories sell." Content like blogs should have facts that talk about why home care is important, but having a story or testimony to relay is what makes the connection.
Posting the blog on a social media platform such as Facebook helps expand the article's reach, Weiss says. He recommends agencies take advantage of Facebook targeting. To do that, just post the article and click on the "boost post" link. That allows agencies to pinpoint the specific demographic that will see the article on Facebook for a minimum cost to your agency of $5 a day.
Targeting Facebook users between the ages of 40 and 60 who are in the agency's geographic service area is most effective, Weiss advises. That will ensure reaching people who may have parents or loved ones in need of care.
Email marketing campaigns that include two to three blog articles with content aimed at helping referral sources provides agencies with a high return on investment. A digital newsletter is content that can be shared by referral sources and passed on by clients to friends who may be looking for services, Selle says.
Often consumers are overwhelmed and they put off looking for care until they absolutely need it, says Selle. Finding an article that directs them to the agency or gives them information on an issue like dementia is helpful and something they can share with others in the same position.
Writing and publishing a blog to your agency website once a week and no less than twice a month is optimal to stay top-of-mind without engaging with the agency's target market too much, Selle advises.
"On social media, people want to learn how to do things better," Selle says. "It's about being helpful and educating [the consumer]."
Weiss recommends taking content a step further and using it as a way to establish relationships with referral sources. He suggests interviewing facilities like senior communities about what they do, writing a five-to-seven-paragraph blog article and promoting it as a featured community of the month. He suggests sharing it on Facebook and boosting the post.
Autoresponders are free, effective
Using autoresponder email is another distribution channel to send content designed to capture clients' attention and promote lead generation. Autoresponders distribute a scheduled email to a list triggered by — or in response to — an action by the user, such as signing up for an email or asking for more information about services.
Autoresponders can be set to send the scheduled email at any time interval the agency determines is appropriate. For example, if a potential client asks for additional information, the autoresponder can send an email first talking about the agency's services and then following up with subsequent email communications promoting different aspects of the agency's offerings such as highly trained caregivers or dementia care programs.
Typically larger agencies and franchises use autoresponders, Davis says. It is an effective, low-cost strategy that smaller agencies can use to connect with clients and leads.
Autoresponder emails can cost as low as $10 a month for a few thousand subscribers for a an email service like Mailchimp, $69 a month for between 2,000 and 5,000 subscribers using Aweber or $299 a month for 5000 subscribers in a more robust system like Infusionsoft.
While it depends on the type of campaign the agency is promoting, Selle recommends no more than one auto responder email a month with articles and other content that is helpful to consumers. This avoids overwhelming their inbox. Sending too many in ashort time fame could prompt people to unsubscribe.
Tips for using content marketing
- Make content useful and relevant. Providing informational content that will help clients, potential clients and leads make educated decisions will set the agency apart as an authority in the industry, Selle says. Useful content can include health information, details about your agency's services or any resources they can use to make their lives easier.
- Use a personal or business story. Storytelling is the hallmark of content marketing. When trying to connect with potential clients, Davis recounts the problems his family encountered in securing safe, dependable home care for his grandmother. "I try to make that connection. They can relate to what I am saying, because they're maybe experiencing the same thing," Davis says.
- Outsource if necessary. If agency marketers don't have the skillset to produce quality, engaging content, they should consider hiring talent that can, Selle says. Marketing or content creation agencies can be tapped to produce content. The cost can range anywhere from a few hundred dollars a month to a several thousand dollars a month, depending on how much and what type of content is produced. — Kathy A. Gambrell ( firstname.lastname@example.org)
From the August Issue
Keep scheduler burnout low by managing workload, agency policies
Limiting the number of tasks schedulers have to accomplish during their shifts, providing variety in their duties and providing effective backup support can mitigate the problem of burnout and high turnover rates.
While schedulers are typically charged with making shift assignments and adjustments and documenting caregivers arrived at their assignment on time, in some agencies they are tasked with numerous other responsibilities.
Many agencies delegate too many duties to schedulers, says Laurie Miller, owner of Apple Care and Companion in Carrollton, Texas. This is a problem that can result in the scheduler becoming overwhelmed. Miller says her scheduler is charged with only managing the agency's scheduling tasks, which include interacting with caregivers on shift assignments and, to a lesser degree, with clients.
Her scheduler is not responsible for interviewing or processing clients. She works one-on-one with caregivers, and is the first line of defense with the scheduling, Miller says.
The shortage of caregivers makes the scheduler's job difficult, says Stephen Tweed, CEO of Leading Home Care in Louisville, Ky. "It's frustrating and tiring," Tweed says. A good scheduler has to have the temperament for the job. A person placed in that role should be organized, have a good attitude and the ability to be flexible, he says.
"It's a high volume of activity," Tweed says.
How the scheduler manages the client relationship — quickly finding a replacement for absent caregivers or providing timely information when problems arise with staffing a shift — is an important component to client satisfaction, Tweed says.
Mitigate scheduler overwhelm
Miller makes it a priority to take the pressure off her scheduler to give her breathing room. One strategy is a dedicated after-hours mobile phone assigned to different staffers. The assigned staffer fields and manages calls about caregivers who are absent from their shift, are running late or any other problem that may arise. Current clients and caregivers are the only people who have the number.
"We rotate it," Miller says. "Everyone gets it one night a week and one weekend a month." Sharing the burden is important, Miller adds, because it can be overwhelming to have one person responsible for handling all the issues.
Leigh Davis, owner of ELDirect In-Home Elderly Care in Fayetteville, Ark., agrees. Davis has five schedulers on staff also with no turnover in the last three years. Ensuring schedulers have support and variety in their jobs can help mitigate turnover, he says. A team approach — ensuring schedulers know they have support from colleagues when the job becomes overwhelming — is important, Davis says.
"They need a little variety — not just [doing] staffing," Davis says. His strategy is to get schedulers out of the office from time to time, and visiting clients so they can engage with the people they're serving.
"It's also about sharing the bigger mission," Davis says. "That they're dealing with people's lives."
Tips for reducing scheduler burnout
- Be mindful when hiring a scheduler. Make certain he or she understands the tasks the role requires such as interacting with clients, scheduling or reassigning caregivers and handling customer service issues. Finding candidates that have a balanced personality is important, Davis says.
- "You need someone who is durable, who can take some abuse and snap back. But not someone who is unaffected by serious circumstances," he says. His agency worked with a company in the United Kingdom to develop a personality assessment tool that he uses to identify good candidates. (PDI, 8/19/15)
- Have definitive procedures for the schedulers to follow. Tweed says to make certain they know what to do if open shifts are not filled or a caregiver is absent from work. Be clear with the scheduler about the agency's policies for any problems or customer services issues that may arise. For example, identify exactly who the scheduler should contact if a client has a complaint about their caregiver or if a caregiver abruptly quits leaving a shift open.
- Keep scheduler tasks focused on the main goal – interacting with caregivers and clients. Ensure that the job description does not include too many other tasks outside the primary goal, Miller says.
"A lot of agencies have them doing other things," Miller says. She said that piling on duties that may not involve the primary job of assigning caregivers leads to frustration, and ultimately, burnout. She pointed out some private duty companies require schedulers to also interview caregiver candidates or make job reference calls. Anything that takes the scheduler away from the desk, she says, isn't in the best interest of the company, caregivers or the client.
- Use a team approach. Ensure schedulers know they have effective support and backup from colleagues so if a problem arises they don't feel alone in finding a solution, Davis says. They can tap into others on the agency team to help troubleshoot situations they may not be able to handle on their own. For example, if a client has an issue with how a particular caregiver provides service, the scheduler can refer the issue to the appropriate member of the agency's team.
- Make sure schedulers have the time off as needed. Giving them the flexibility to take time when they need helps manage stress that may be building when the position becomes overwhelming. Miller suggests letting staff take a few hours or half-day away from the office as stress management strategy. And she gives paid time off so if staff needs a few hours or a day to decompress, they can.
- Choose the right technology. Davis says he also uses cloud-hosted scheduling software Generations Homecare System by Mount Pleasant, Mich.-based Integrated Database Systems. He stresses that having a system that gives relevant and timely information helps relieve staffing stress.
The system that his agency uses has a locator feature that can help schedulers easily match clients and caregivers who live near each other. That reduces the complexity of trying to match clients with caregivers who may reside too far away, increasing the likelihood of their arriving for a shift late and creating a problem that the scheduler has to manage. — Kathy A. Gambrell ( email@example.com)
Use Facebook Live to stream videos and draw many eyes to your agency's content
Facebook's recently retooled algorithm used for content people view should serve as added motivation for agencies to use the social media site's new, free live video feature.
Facebook in June announced it was changing News Feed so posts from friends and family rank higher and other posts rank lower.
However, it appears businesses still can draw many eyes to posts by boosting content or posting videos, notes Erica Metzger, social media manager for Philadelphia-based BAYADA Home Health Care. And it appears videos using Facebook Live will rank higher in people's feeds than non-live ones.
BAYADA held its first Facebook Live event June 30 to discuss plans to gift the majority of the company to a newly created non-profit foundation. By holding the event, the agency was able to get its leaders in front of an important announcement and give employees, patients, clients and families the opportunity to put concerns to rest about the company's present and future.
The event, which remains available to view on the agency's Facebook page, drew more than 100 people live and ultimately has received 6,500 views. The video has 67 comments, 86 shares and 328 likes.
By comparison, BAYADA's Facebook posts in the second quarter of 2016 had an average reach of about 3,000 people.
It's unrealistic for many agencies to expect such a turnout if they host a Facebook Live event; BAYADA's Facebook page has more than 26,000 likes. Still, expect a Facebook Live post to draw considerably more views than a typical post, Metzger says.
If your agency posts regularly to Facebook, Facebook Live should be part of its regular mix, she contends.
Although it's difficult to show how successful individual Facebook posts are at helping with recruitment and retention, BAYADA's event helped ease some employees' concerns while giving other employees an opportunity to express excitement about the company's future, Metzger says.
BAYADA's more than 18,000 employees weren't required to watch the event, but in advance of it the company posted details on its portal and promoted the event on Facebook, Metzger says.
What should agencies shoot live?
Although BAYADA chose to post something on Facebook Live that was significant to the future of the company, agencies don't need to wait for something momentous to happen before going live, Metzger says.
For instance, on July 11 the Boulder Office of Emergency Management in Boulder, Colo., held a community meeting at the same time Let's Play Birmingham in Birmingham, Ala., held a dance party with Bob the Minion and a reverend in Africa led a church prayer service.
Regardless of why you're having a Facebook Live event, Metzger says, the goal should be to humanize the brand, to connect to your agency's culture and values.
BAYADA's Facebook Live event allowed its leaders to immediately address questions and concerns.
For instance, Patricia, a pediatric RN from Pennsylvania, asked Chief Operating Officer David Baiada if employees still will have their jobs even though the company is being gifted.
"The answer is yes," he told her. "Unequivocally yes, with the continued clear focus more importantly on making sure we all work together as a community of compassionate caregivers to make the BAYADA way come true."
How do I get started with Facebook live?
- Create a company Facebook page if you don't already have one. Facebook Live events should be held through your agency's account.
- Sketch out what you want to say. You don't have to have everything scripted, but you should at least prepare somewhat because once you click "Go live," you're live. "It's just a conversation, but like with any good speech, you want to know your talking points beforehand," Metzger says. Also, in advance of the event it makes sense to write and edit the accompanying Facebook post you're sending out. That way you won't have any typos or other mistakes.
- Figure out when your audience is most likely to tune in. Click "Insights" at the top of your company's Facebook page to identify the best times to reach your audience.
- Alert your audience in advance of the event. For instance, post items to your company Facebook page letting people know that you're holding a Facebook Live event. Explain why you're having such an event and what benefit people might get from attending. If you pay to boost this post, it will draw many more eyes.
- Grab your equipment. The Facebook Live feature is available on Android phones, iPhones and iPads. Note that it's not available to everyone right now, according to Facebook.
- Make sure your connection is strong. "WiFi tends to work best, but if you can't find a nearby network, you'll want a 4G connection," according to Facebook. "If you have weak signal, the ‘Go Live' button will be grayed out."
- Click "Go live." Your device's forward facing camera will automatically turn on, and you'll be able to see yourself live streaming.
- Keep the video going for at least 10 minutes. It takes a while for many people to click on a Facebook Live event, but once BAYADA's event passed the 11-minute mark, the audience doubled, Metzger says. People can stay live for up to 90 minutes at a time, according to Facebook.
- Note that after your video is complete, it will automatically be published to your page. People who were unable to watch it live can watch it later. Josh Poltilove ( firstname.lastname@example.org)
From the July Issue
Get your share of bundled payments by building relationships with rehab facilities
Focus on building solid relationships with rehabilitation facilities and other providers and put proven programs in place
if you want to increase your odds of partnering on programs such as the bundled payment initiative.
Gavin Ward, regional director for strategy and partnerships with Los Angeles-based 24hr HomeCare, says the road to its contract
with an Arizona rehabilitation facility came after a year-long discussion.
24hr HomeCare which has one office in Arizona signed its partnership agreement with HealthSouth East Valley Rehabilitation Hospital in Mesa to care for some of HealthSouth clients after discharge. The agency is responsible for ensuring clients follow their care plans after going home, Ward says.
In return, 24Hr HomeCare receives a portion of the lump sum payment that the rehab facility receives from CMS for a client’s care. HealthSouth, however, is not obligated to refer all of its discharge cases to the agency, instead sending clients when there is a need and good fit.
Ward says the pact hopefully signals a fresh look at private duty agencies as part of integrated health care plans. “It is another opportunity to prove to health systems that our [private duty] outcomes are saving systems money,” Ward says.
It took a year of discussions to iron out the nuances in the agreement between the Los Angeles-based private duty agency
and the rehab facility, Ward says. Agencies considering a similar arrangement must have clear
solutions for the challenges that the health care partner is facing.
CMS in 2013 implemented the Bundled Payments for Care Improvement initiative which includes four payment models. Typically Medicare makes separate payments for each service but under bundled payments, providers would receive a lump sum payment for a group of services.
Providers find common ground
The complexity of the contract language and the parties’ desire to understand how each work contributed to a yearlong period of relationship building.
The conversation focused on issues that private duty agencies typically do not have to worry about such as whether IT systems meet contractual requirements and the transfer of client information. But the mission was to find common ground and provide insight on how the private industry works, Ward says.
There were certain parts of the agreement that didn’t apply to our industry, Ward adds.
For example, provisions that caregivers document when injections are given were not relevant, he says, since it was against state law for private duty caregivers to administer injections.
Building a relationship with a skilled care facility will come with unique challenges. Hiring and training qualified caregivers may be a big hurdle for private duty agencies considering skilled care partnerships, Davis says.
Ward says that 24hr HomeCare caregivers working with HealthSouth are given additional, specific training on discharge plans, responsibility of the client, and guidance on providing coaching and motivation. While many agencies struggle with finding quality caregivers, he says his agency has a robust human resources department — both regional and national — that is goal driven when it comes to recruitment.
Tips for bundled payments
Ward recommends these strategies for agencies considering a bundled payment arrangement with a skilled care provider:
- Invest in developing programs that bring tangible results and clear solutions to your community/health care partners’ challenges. Stating “we have the best caregivers” or “our clients love us,” while it may be true, will not be enough to gain traction in these partnerships. Agencies need to ensure good data for programs is available.
- Invest the time, effort and resources in being able to show verifiable, data-driven outcomes. Data would include things like readmission rates, number of current partnerships and clients served, factual documented feedback from clients/community partners and evidence of cost savings of those clients served through the agencies’ efforts.
24hr HomeCare conducted a 30-day readmission study for 600 of its hospital-discharged clients in California who were directly referred by a hospital. 24hr HomeCare’s data showed a 3.2% readmission rate compared to 20% national average readmission rate. —Kathy A. Gambrell ( email@example.com )
Marketing & referrals
Show your agency's value to joint replacement surgeons and capture referrals
Joint replacement surgeries have been slowly migrating from inpatient-only procedures to the outpatient setting. That trend, coupled with CMS’ new model tying Medicare reimbursement for surgery to patient outcomes, may mean increasing opportunities for home care agencies to serve that patient population.
On April 1, CMS’ new Comprehensive Care for Joint Replacement Model took effect in 67 metropolitan statistical areas,
tying the success of comprehensive joint replacement surgeries to reimbursement.
A new study of those areas found that the use of home health after major joint replacement surgery lowered readmission rates for Medicare patients and increased the cost-effectiveness of care. The study, released June 16 by the Alliance for Home Health Quality and Innovations, examined the cost of care in those metropolitan areas for Medicare patients who received major joint replacement surgery without major complications or comorbidities.
Using discharge data from all 67 areas, analysts from Dobson | DaVanzo & Associates, contracted by the Alliance, found joint replacement patients who retained home health services immediately following their hospital stay brought readmission rates up to 90 days post-surgery to just 5%, compared with 12% to 15% for patients who received rehabilitation in facility-based settings.
Home health also led to significant Medicare cost savings when those services were used post-op. Medicare episode payments averaged $19,900, compared to $24,900 when home health was not used.
Teresa Lee, executive director of the Alliance, said the study establishes that when home health care is clinically appropriate, it is “a valuable, cost-effective partner for hospitals” that can lead to cost savings for patients, providers and taxpayers. She has heard anecdotal reports of hospitals reaching out to agencies to create partnerships to care for joint replacement patients.
The goal of the joint replacement model is just that — is to give hospitals an incentive to work with physicians, agencies, skilled nursing facilities and other providers to ensure beneficiaries get the coordinated care they need and reduce treatment costs. Under the model, CMS will reward hospitals with low complications and readmission rates after a joint replacement procedure with additional Medicare payments, but require those with high re-hospitalization rates to repay Medicare for a portion of the costs.
Dr. Kenneth Miller, a consultant who also serves as a clinical educator at Catholic Home Care in Farmingdale, N.Y., already has seen hospitals reduce their length-of-stay after joint replacement surgeries. As a result, he says, more progressive hospitals have already formed partnerships with home health agencies.
One of Miller’s consulting clients, a home health agency in the South, has successfully partnered with a hospital and now joint replacement patients make up 95% of the agency’s census.
Outpatient surgeries may rise
Both Medicare and non-Medicare home care agencies also may want to find ways to show their value to outpatient joint replacement clinics.
In a survey of medical clinics around the country, consulting firm Advisory Board found that while just 10% of its surveyed clinics performed knee replacement surgeries in an outpatient setting in 2012, nearly 25% of those surgeries were in the outpatient setting in the same quarter 2014.
Statistically, the number of these surgeries performed in the outpatient settings is small, in large part because CMS only reimburses for Medicare joint replacement surgeries performed in an in-patient setting.
If the rules change, the majority of these surgeries may become outpatient procedures, speculates Dr. Patrick Toy, a surgeon at Campbell Clinic Orthopaedics in Memphis, Tenn.
Toy, who has been performing private pay outpatient joint replacement surgeries at Campbell since April 2013, says moving hip and knee joint replacement surgeries to the outpatient setting fits in with CMS’ trends in increasing value.
Patients are requesting outpatient surgery to allow them to recover at home, Toy says. Currently, the clinic does not have a partnership with any home health or private duty agencies to provide care for patients upon release, but he believes patients who live alone could benefit from private duty care during recovery.
Dr. William Jiranek, president of the American Association of Hip and Knee Surgeons and chief of adult reconstruction in the Department of Orthopaedic Surgery at the Virginia Commonwealth University Health System, says that while he currently performs only inpatient joint replacements, he routinely sends people home within 23 hours.
The amount of time patients spend in hospitals to recover from these surgeries will continue to decline, Jiranek believes. However, due to things such as video-based monitoring opportunities, increased pain management capabilities and outpatient physical therapy, home health agencies will need to work hard to capture business from this patient pool, he says.
Agencies that proactively manage patient problems without sending patients back to the hospital, he says, may have opportunities to partner with clinics in ways that can benefit the patients and the orthopedic surgery centers.
Sell your services to referral sources
- Get into meetings with joint replacement surgeons and demonstrate your agency’s value. Miller and Bob Roth, managing partner of Cypress HomeCare Solutions in Phoenix, Ariz., urge agencies to use all contacts at their disposal to get in front of the right people — directors of case management, executive directors, anyone from the C-suite.
- “Agencies should leverage their relationships with existing orthopedists as a way to get into hospital meetings,” Miller says.
- Highlight data that make your agency stand out. After you’re at the table with referral sources, explain the benefits of the services your agency offers, Miller says. Among the things to highlight: Home health CAHPS scores, OASIS data and star ratings that put your agency in a positive light.
- Miller suggests highlighting medication questions, since medical errors are a top reasons for re-hospitalization, as well CAHPS care issues related to pain management.
- Lee suggests agencies look closely at the model and their statistical area data to help them shape their communications to show how they can help improve those quality measures.
- Make sure hospitals and outpatient clinics understand joint replacement patients’ needs after release. Explain how a failure to ensure that a patient is going into an appropriate home setting may lead to higher readmission rates, Roth advises. — Angela Childers ( firstname.lastname@example.org )
From the June Issue
Labor doubles minimum salary requirements for workers to be exempt from overtime
In the wake of a U.S. Department of Labor final rule released May 18, private duty agencies must examine exempt employees' current salaries. They'll need to figure out how many people on their workforce will be below the salary threshold when the rule takes effect Dec. 1.
Providers should begin tracking employees' hours worked if they don't already, advises Bill Dombi, vice president of law for the National Association for Home Care & Hospice (NAHC). And they'll need to consider several options about compensation, including eliminating overtime and lowering employees' salaries.
The Labor rule increases the minimum salary requirements for overtime exemptions for executive, administrative and professional personnel to $47,476 a year — $913 a week.
That's up from $23,660 a year — $455 a week.
The rule will have a significant impact on home health, hospice and private duty, Dombi says. For some providers it will affect everyone from therapists and nurses to employees in the finance department.
Agencies found by Labor to be in noncompliance could be subject to overtime pay violations, which would require agencies to pay back wages and damages twice the amount of the unpaid wages, says Eileen Maguire, a partner at Indianapolis-based law firm Gilliland, Maguire & Harper.
Who qualifies for the exemption?
The Labor rule affects regulations for determining whether "white collar" salaried employees are exempt from Fair Labor Standards Act's (FLSA) minimum wage and overtime pay protections, according to a Q&A posted by DOL on May 17.
Unless specifically exempted, employees covered by the FLSA must receive overtime pay — pay for hours worked in excess of 40 in a workweek — at a rate not less than one and one-half their regular rates of pay.
To qualify for an exemption, an employee generally would need to be salaried, be paid more than $913 a week and primarily perform executive, administrative or professional duties.
The salary threshold will be adjusted every three years and, according to a fact sheet, is expected to rise to more than $51,000 on Jan. 1, 2020.
Employers will be able to use nondiscretionary bonuses, such as those tied to productivity and profitability, and incentive payments, including commissions, to pay up to 10% of the $46,474 — as long as these payments are made at least quarterly.
In addition to the changes for lower-paid employees, Labor raised the "highly compensated employee" threshold from $100,000 to $134,004. Employees who earn more than $134,004 and who meet this exemption's requirements as to job duties will remain exempt from overtime after Dec. 1, 2016. View the requirements at http://1.usa.gov/27AXFhE .
Note that the FLSA doesn't prevent individual states from establishing more protective standards. So if a state establishes a more protective standard than the FLSA's provisions, the higher standard applies in that state. Some exemptions, such as the highly compensated exemption, may not apply in every state, says Rebecca Goldberg, a labor and employment attorney at Berchem, Moses & Devlin in Milford, Conn.
Agencies react to the rule change
Some agencies tell DecisionHealth that they have serious concerns about the rule's impact. But leaders at other agencies said the rule only affects a few of their employees.
Kim Gaffey, CEO of Gaffey Home Nursing & Hospice in Sterling, Ill, says her company doesn't have the budget to pay overtime. She believes for the most part, the rule "means careful use of hours, and potentially more part-time employees, in order to facilitate cost containment."
Meanwhile, Centra Home Health in Lynchburg, Va., has audited its employees' wages and determined the rule only affects two employees.
But Jeff Wiberg, president of Family Home Care in Liberty Lake, Wash., expressed frustration with the rule.
"Of course I support the fact that it needs updating and growth with inflation and such, but to correct the problem in one single leap is a gross overburden from regulators," he says. His agency has supervisors performing job functions with "a lot of variable time requirements," and he says in his area, a job that pays $40,000 a year is really good.
The Labor rule will force Wiberg's agency "to micromanage time and thus create a new dynamic between employer and employee that is not healthy," he says. "They will not like it and we certainly do not.
"Obviously as well, in home care we have needs that can crop up on a Friday afternoon and now we will be on the hook for time-and-a-half cost, which will force cost saving measures in other areas such as reduction of staff or base wage to compensate."
Options to consider when preparing
- Begin paying overtime to applicable employees as of Dec. 1. You already should be paying overtime to salaried executives, administrative and professional personnel earning $23,660 a year or less. But as of Dec. 1 you will need to begin paying overtime to salaried employees earning between $23,660 and $47,476 a year as well, the rule states.
- Raise employees' salaries to more than $47,476 a year. Doing so will allow you to continue having these salaried employees work more than 40 hours per week without your having to pay them overtime, industry experts note.
- Lower employees' annual salaries and begin paying overtime. For instance, if an employee currently earns $45,000 per year but works several hours a week of overtime, you might consider lowering the employee's salary to $40,000 per year and then pay the employee $5,000 per year in overtime. This would keep the employee's total annual pay constant without having the employee work fewer hours. Doing this might allow you to avoid spending more money on staff — and might be necessary depending on how much money you have in your agency's budget. Choosing this option will affect employee morale, however, Dombi says. If you select this option, be particularly sensitive to how your employees may react when you inform them, Maguire says. Choose your words cautiously.
- Hire more full-time staff, thus ensuring nobody needs to work overtime. This would be an added expense, but it might be less expensive than paying employees time and a half for working overtime. However, keep in mind that adding employees to your workforce also may affect or impose other legal obligations such as those under the Affordable Care Act and the Family and Medical Leave Act, Maguire says.
- Maintain staffing levels and salaries but ensure nobody needs to work overtime. This might mean taking on fewer patients or figuring out ways to work more efficiently so your formerly exempt employees work 40 hours or less each workweek, Maguire says.
- Re-examine whether it still makes sense to pay employees on a per-visit basis. Some affected employees might provide enough visits where some weeks they earn more than $913 and other weeks they earn less, Dombi notes. Your agency could get into trouble if it pays the employee less than $913 for a workweek but doesn't pay overtime if the employee works more than 40 hours.
- Hire contract staff. Be wary of this option because it would be financially dangerous if, between the various jobs the employee has, he or she works more than 40 hours a week and you are deemed a joint employer. If that's the case you might be held equally responsible for paying the employee's unpaid overtime back wages plus damages of two times the amount of unpaid wages, Maguire says.
- Use a combination of options listed above. Many agencies will decide to take certain steps from some employees and other steps for other employees.
Related links: View the rule at http://1.usa.gov/1THwcAR. Read a Labor Q&A on the rule at http://1.usa.gov/1OHMqxA. View a fact sheet at http://1.usa.gov/1NxugOY. Examine a breakdown by state of how workers will be affected by the rule at http://1.usa.gov/1THD41g. See who qualifies for executive, administrative and professional exemptions at http://1.usa.gov/1ToGzgX.
Read the fine print related to benefit triggers to guarantee LTCI payments
Identifying and understanding the strict rules and benefit triggers for long-term care insurance policies is critical for private duty agencies to avoid claim denials and missed payments.
Agency administrators should become knowledgeable about what questions to ask about a client's long-term insurance policy and track the often stringent rules that can derail how much is paid and when, says Matt Capell, CEO of FHS Senior Care.
Whether the policies are purchased by an individual, employer-sponsored or part of a state partnership program, the source doesn't typically matter. Where the differences emerge is in the level of coverage and the benefits available in the policy. "There are different flavors that can be baked in," Capell says.
Policies can often restrict the type of facilities or programs a client can use. For example, it may pay only for assisted living and not home care. It may not cover respite care, but will cover adult day care. Capell says it is vital to know from the start what type of policy your agency is dealing with.
At the same time, the policy may have benefit triggers, conditions that must be met for the client to qualify for benefits. An example of a benefit trigger is that a client must need help for a specific number of activities of daily living (ADL). If documentation on the claim only lists two, it will likely be denied.
Also there may be language that exempts some conditions as pre-existing for a period of time after the policy is purchased.
Quickly identify inflation riders
How agencies pre-certify clients is a vital part of the process for obtaining benefits through long-term insurance companies. Capell says the most important action an agency can take to prevent claim dentals is obtaining a copy of the client's policy and understanding the nuances in the policy provisions and benefit triggers.
He says administrators should become familiar with the client's daily maximums for care and features like inflation riders. Because policies are often purchased by clients 10, perhaps 15 years before they are needed, inflation riders are built in. The riders offset inflation over time. So $200 purchased in 2016 with a 5% inflation rider, in 2031 would be worth $416.
Leigh Davis, owner of ELDirect In-Home Elderly Care, says clients often don't have a good understanding of what their policies cover. "The client thinks ‘I paid for it so I get care.' But polices are underwritten in different ways by different people," Davis says.
Ask about ADL documentation rules
Denials for long-term care policies stem from agencies failing to ask the right questions, Capell says. "It's the questions you don't ask that will get you," he says. Failing to obtain the correct information is evidence of inexperience working with these types of policies, he says. Misinformation and making assumptions about what is covered can lead to unexplained denials and short pays.
Reasons for denials include care delivered outside the care plan, inattention to daily maximums, ADL trigger not met or claims not received. Also failing to ensure that clinicians and providers have the required licensure can result in clam denials. Davis says requirements in some policies are buried in fine print. His agency finds a contact person within the insurance company who can help the agency navigate the details.
"You can get caught in a shell game. You fax information and send it to Department X. They say it's not there. And you send it again, "Davis says. "You have to have a contact person who can deal with the problems."
Davis says his agency has been bitten by denials after not looking closely at ADL documentation requirements. What's more, long-term care insurers will likely not allow an agency to correct omissions or mistakes, sticking instead to the claim denial.
Tips for LTCI coverage
- Become a patient navigator. Help clients though the complex language and requirements embedded in their policies, Davis advises. The pre-certification process should include obtaining consent from the client to speak directly to the insurance company.
- Get the LTCI company to send the policy details. "There is a complexity to the policy that people need to be aware of," Davis says.
- When your agency understands the client's policy, you can explain the benefits they are eligible for, something the insurance company representatives don't always do after the policy has been purchased.
- Ensure providers have the correct licensure. Make certain that the providers caring for the client have the licenses and certification required under the policy provisions. For example, a policy may require services be provided by a certified home health aide rather than an unlicensed companion, Davis says.
- Ask the right questions. Polices are different and knowing what the requirements are under each client's plan is essential to timely and accurate reimbursements.
- Create a checklist. Be super organized, says Capell. Design a checklist that tracks the client's policy provisions and schedule a quality assessment to ensure requirements are being met. Be sure to regularly check the ongoing care plan against policy rules.
- Educate the client. Davis recommends becoming a patient navigator to help the client understand the nuances of their policy, benefit triggers and other requirement that may not be obvious. — Kathy A. Gambrell ( email@example.com)
From the May Issue
Intake & referrals
Use recorded phone calls to improve your agency's training and sales
Recording intake calls and using them as training tools can increase an agency’s lead conversion rates.
Family Home Care in Liberty Lake, Wash., is among the agencies that record intake calls. It experienced a 25% rise in conversions in part because its president, Jeff Wiberg, began recording intake phone calls and replaying them during employee training sessions.
The replays are a way to help staff members sharpen phone skills and gain a better handle on how to respond to frequently asked questions, he says.
There are a number of companies that offer the service of recording phone calls.
Yodle Brand Networks is a provider of marketing and brand-management services in the home health space. It can record calls, allowing an agency to use them in training.
New York-based Yodle Brand Networks provides a range of tools (including call recording) to its 576 home care clients. Its
fees are determined by the number of locations and specific products or services required.
For those agencies not using Yodle, there are other options for call recording.
Many corporate phone systems have the capability to record employees’ phone calls, and agencies should take advantage of that, experts contend.
One agency uses recorded calls to train
Using recorded calls for training allows Family Home Care managers to impart relevant, real-world instruction on real-world situations. “It’s the tactile element of training,” Wiberg says. “The hows and whys are very ephemeral. With hard examples, there’s better retention of the knowledge.”
On the fourth Thursday of every month, Wiberg holds an hour of training that includes his entire 25-person staff, not just the company’s seven phone operators.
Every employee at Wiberg’s agency has to be able to handle intake calls appropriately. “It doesn’t matter if [callers] reach someone in billing or they reach someone at the front desk. They can handle the call without having to transfer them,” he says.
Training tips involving recorded calls
- Conduct training regularly. That way information becomes ingrained and stays ingrained in an employee’s memory. “Training can’t be one and done,” Wiberg says. “It has to become a habit.”
- Remind staff to take every call seriously. Do this even — and perhaps especially — if a caller is not a client seeking help or if the caller appears to simply be gathering basic information, industry experts advise.
- “We typically have to remind the home care company to not ignore calls from out of the area or even out of state, as generally the family member does not live close,” says Steven Power, president of Yodle Brand Networks.
- “For example, a 90-year-old woman is in need of a caretaker. She does not have a smart phone or a computer. She doesn’t have the referral of a local agency so she contacts her daughter to ask her for help. Her daughter will then use her phone or computer and try to find a credible agency online that is local, has a good reputation and is competitively priced.”
- Avoid using “bad” phone calls as punishment rather than opportunities to improve. “If a certain person’s voice is on the call, they know they’re not being singled out,” Wiberg says. “It’s constructive in nature. We all care about each other and we all own the successes and failures.”
- Think outside of home care when seeking good practices for handling intake calls. This could mean searching the internet to learn more about how other business segments convert intake calls into sales, Wiberg recommends. — Scott Harris ( firstname.lastname@example.org )
Guest column: Caregiver retention
These 6 simple techniques will help your agency improve caregiver retention
By Anne-Lise Gere, SPHR
Home care providers don’t need to be reminded of the caregiver shortage. They experience it every day, and it’s a major reason they have to turn down new clients.
The demand for home care services keeps growing with more seniors aging at home, yet the industry is experiencing growing pains. Home care cannot attract enough caregivers to keep up with the growing demand for services.
The Bureau of Labor Statistics projects that the number of jobs in home health will grow by 38% and add 350,000 direct care workers in the next 10 years. That makes home care one of the nation’s fastest growing occupations.
Home care providers know caregivers are critical to their business success. Although there is no silver bullet, the following techniques will probably improve retention:
Start with the end in mind. Recruit caregivers who are likely to stay.
- Consider your best caregivers: What are their top characteristics? List them and use them as a checklist when interviewing.
- Consider the characteristics Carmen Davis of South Carolina-based Assisting Angels looks for when she recruits: Engaging, personable, caring, service-oriented, professional certification, available to work.
Offer competitive wages. Although money can’t buy happiness, it contributes
greatly at keeping your caregivers happily employed with your agency. I know you’re
thinking you can’t afford to pay caregivers more, but when you consider the cost of
turnover is at least $2,500 per caregiver who leaves after initial training, realize you
cannot afford to lose those you have recruited. That’s according to a report by the
Center for American Progress, available at
- Think about what you could fund with an extra $2,500 per caregiver.
- Consider implementing step increases for seniority by increasing the hourly wage every six months for the first three years
Foster strong client-caregiver relationships. Employees stay because they work with
people they like. The reason caregivers stay is because they get along with clients.
- Matching client and caregiver is an art. Getting is right match is essential to client satisfaction and caregiver retention. This is the key to a sustainable home health business.
- Home care providers need to perform an in-depth intake assessment, asking questions about the personality of the client and likes/dislikes. Providers should perform a similar assessment of their caregivers.
Provide regular feedback. Caregivers like verbal praise best when it comes to recognition
for a job well done.
- As part of this, share feedback when you hear positive comments from caregivers’ clients and their family. Criticism should be shared with the caregiver too, but in a way that is be helpful. Focus on the facts, on what the caregiver needs to change and how to change. Avoid passing on the clients’ emotions.
- Also, provide feedback from your office. Recognize the “good students,” those who fill out paperwork correctly and on time. Consider creating a monthly award with a certificate of recognition and a cash bonus.
Offer meaningful recognition. Besides verbal recognition, caregivers like to get
a little extra paid time off. Cash awards and gift cards are also proven techniques to sustain
- A gift card to a popular restaurant, movie tickets or an invitation for lunch will put a spring in your top caregivers’ steps. Again, remember the $2,500 you save when caregivers stay with your agency.
Provide a chance for career progression. Consider offering a coaching role to your
top caregivers. Put them in charge of new hires to mentor them during the first months on
- This role gives your top caregivers a chance to grow, learn coaching and take on more responsibilities in your agency.
- Bill Hurt, vice president at American Retirement Homes in Virginia, credits a similar program for his company’s relatively low turnover in caregivers.
- He notes that putting CNAs in charge of coaching makes good financial sense versus a certified. Plus, these employees also can relate to the experience and struggles of new caregivers.
- Tip: Use your best caregivers and “promote” them to coaching the newbies.
About the author: Anne-Lise Gere, SPHR, is an HR advisor and consultant at Gere Consulting Associates LLC. Her practice focuses on HR projects, employee training and support to HR practitioners in Virginia and beyond. Home care providers and long-term care facilities employers around the country consult with her on employee relations and HR policies. For more information, visit www.gereconsulting.com.
NOTE: Learn more about caregiver retention from Anne-Lise Gere during the 19th Annual Private Duty National Conference & Expo, Nov. 14 – 16, 2016, at the Aria Resort & Casino in Las Vegas . Gere will be speaking on Nov. 15, 2:30 – 3:30 p.m., in a session titled, Focus on 7 key areas to become caregivers' employer of choice . Learn more at www.privatedutyconference.com
From the April Issue
Tech-savvy private duty startup Honor has announced a new partnership with the American Cancer Society
The goal is to help the company provide more specialized care to clients with cancer. Honor will license the American Cancer Society's proprietary care guidance, the San Francisco-based business announced March 23.
Honor will build the American Cancer Society's guidance into the company's technology and use it to help make caregivers as knowledgeable as possible about how to best care for the company's many cancer clients, says Seth Sternberg, Honor's co-founder and CEO.
The "mountains" of American Cancer Society information will, for instance, offer Honor's caregivers guidance about meal prep for cancer patients and detail when to take a cancer patient's temperature, he says.
Honor is one of several startups that have emerged in the private duty industry in recent years, including HomeHero and Hometeam (PDI 04/16).
One thing Honor does to set itself apart is working to become tailored to clients' individual needs, Sternberg says. "We want to get really, really smart in terms of how we help people with different conditions."
Licensing the American Cancer Society's guidance "should make Honor more attractive to people who do have cancer," he says. "We're now doing something where we absolutely should be best in class around their particular needs."
On March 23, Honor also named its first three official advisors: Bruce Allen Leff, MD; Carol Raphael; and Ronald Greeno, MD. Leff is director of the Center for Transformative Geriatric Research and founder of the Hospital at Home Program. Raphael served 22 years as president and CEO of the Visiting Nurse Service of New York. And Greeno is chief strategy officer for IPC Healthcare Inc. and was the co-founder of Cogent Healthcare Inc. — Josh Poltilove ( email@example.com)
Marketing & referrals
Protect your clients when using their info on websites, blogs or social sites
Agencies should ensure marketing campaigns are compliant with HIPAA regulations and that content posted on social media platforms and websites do not violate patient privacy guidelines.
Administrators should obtain signed HIPAA-compliant authorization forms from clients prior to using images, testimonials or any other information that constitutes a release of personal health information on social channels website or in blog posts.
Elizabeth Zinc Pearson, a home health attorney in Edgewood, Ky., says having a compliance officer or department review marketing content is a sound strategy to ensure that privacy is protected. The penalties for noncompliance can range from $100 to $50,000 per violation (or per record), according to the HIPAA statute, with a $1.5 million calendar year cap.
Having clients or families discuss their experiences with the agency in blogs posts or on website testimonial pages is a traditional marketing strategy. However any testimonials or statements by clients published on the agency's distributions channels must be covered in the authorization form, Pearson says. Document clearly whether identifying information such as client's full name will be used or just their first name.
"It should state where they are using, it how they are using it and for how long," advises Pearson. She says the client has the right to revoke authorization at any time. The individual designated as the client's personal representative can sign the authorization if the client is not competent to do so himself.
Using client and caregiver images on websites, in blogs or on social media platforms provides an authentic experience for audiences because they can see what clients and caregivers look like and how they interact together. But Pearson say agencies should completely avoid using images of clients in marketing or advertisements and opt for stock photography instead.
Elizabeth Hogue, a Washington, D.C., attorney who represents home health and private duty agencies, says that agencies should review their respective state statutes that govern protected health information to see what regulations apply to their specific circumstance. Some state statutes cover more than just "protected health information," as defined by HIPAA. Hogue says that confidentiality should always drive decisions in marketing efforts.
Monitor staff use of social media
While platforms such as Facebook, Twitter, YouTube, Pinterest and LinkedIn are increasingly attractive options for agencies to promote services and events and generate leads, it is best practice to make certain that strategies deployed are compliant with HIPAA.
At issue, Hogue says, is trust. While social media seems fairly ubiquitous, Hogue says for everyday people, that's not the case at all.
"The private duty agency needs to be especially sensitive to the fact that many older people do not use and do not like social media," Hogue says. It's an issue of trust. It makes them wonder whether they can trust the provider.
That view extends to agency staff she says, some of whom may have social media accounts or blogs of their own. Even with the move towards personal branding by workers, the rules for staff members are the same, she says.
They may not share information about clients, even anonymously. They should be disciplined if they do," Hogue says. Agencies should have a social media policy that makes it clear what employees are permitted to do and not permitted to do. "If they violate it, they are subject to discipline," Hogue says.
Guidelines for complying with HIPAA
Review state statutes that govern personal health information. Hogue says some state statutes cover more than "protected health information," as defined by HIPAA.
- Have clients sign a HIPAA-compliant authorization form when using images, statements or testimonials on website or social media. State clearly when, how, where and for how long information will be used.
- Consider using stock photography rather than actual client images. Stock images are generic in nature and can convey the message the agency requires without using clients. Stock photos are also cost effective and easily accessible.
- Have a written policy for social media that informs employees what they can and cannot post on their personal channels. Policies should include clear direction on what platforms are covered, what content is appropriate for publishing and what violates HIPAA. For example, the policy could explain that using a client ‘s name and diagnosis without written consent is not acceptable.
- Ensure proper permissions have been obtained for copyrighted content obtained from outside sources. Copyright is the legal protection given to published works that prohibits anyone other than the author to reprint them. Reports, white papers or other published works, for example, are subject to copyright rules. Contact the author or the owner of the document and obtain permission to reprint or use portions of the content in question t to prevent afoul of copyright restrictions. — Kathy A. Gambrell ( firstname.lastname@example.org)
From the March Issue:
Scalia news hurts chances for resurrection of companionship exemption
The death of Supreme Court Justice Antonin Scalia may doom the private duty industry’s already uphill battle involving the companionship services exemption.
The Labor Department’s new companionship rules, which went into effect in October 2015, require agencies to provide aides 1.5 times their hourly pay for all hours worked in excess of 40 during a week.
The Home Care Association of America (HCAOA), National Association for Home Care & Hospice and the International Franchise Association filed a petition in November with the U.S. Supreme Court after an unsuccessful attempt to prevent the changes from taking effect.
For the case to move forward, four justices must agree to hear it. And for the private duty industry to ultimately win, at least five justices would have to side with it. Scalia died Feb. 13, and it’s unclear how long it will take for his seat to be filled.
Without Scalia, it’s less likely the Supreme Court will hear the companionship case — and even if it does, it’s less likely five justices will side against Labor, says attorney Robert Markette of Indianapolis-based Hall, Render, Killian, Heath & Lyman.
Scalia was known as a “strict constructionist” who often ensured that administrative agencies stayed within the boundaries of the statutory authority granted to them, says Tom Harper, a partner at Indianapolis-based law firm Gilliland, Maguire & Harper. That’s compared to left-leaning Justices Sonia Sotomayor and Elena Kagan, who tend to give more leeway and deference to administrative rules and regulations.
For issues such as the companionship exemption, Harper agrees Scalia’s death makes it unlikely the petition will obtain the necessary four votes to be heard.
“Given that [the HCAOA lawsuit is about] an administrative agency and allegations that it didn’t follow protocol and stepped beyond authority, it could have been likely that Scalia would have voted to grant certiorari,” Harper says.
Even if the Supreme Court does take the case, the outcome likely will fall on party lines in a 4-4 ruling if it is heard before a new justice is appointed, Harper says.
Act now to comply with Labor rules
For any agencies that haven’t been adhering to the revised rules, note that Labor’s one-month grace period for compliance ended Nov. 13, 2015.
Labor is actively looking for violators, Markette warns. One of his agency clients already is facing an audit, and investigators were specifically looking at companionship services.
Although an audit may not set an agency back too much if violations are found — generally, the penalty will just be missing wages and interest — Markette suspects plaintiffs’ attorneys will start sniffing out violations later in the year when back wages start adding up and it’s more likely they could successfully sue for damages for willful violations.
“If you’re not getting this fixed and you get sued by employees, you could be looking at significant damages,” Markette says. “You could be turning a $200 or $300 paycheck issue into a $15,000 problem.”
How to comply with Labor’s rules
Regardless of what happens with the Supreme Court, Markette advises agencies to do the following:
- Make sure you have a tracking system in place for hours and overtime. If you’re not paying overtime, do so now and make sure all aides are receiving 1.5 times their hourly pay for any hours worked in excess of 40 in a given week.
- Have a tracking system in place for travel time and mileage, too. If employees rack up miles and have substantial other work-related expenses, it could be considered an encumbrance on wages — dropping the employee’s pay below minimum wage — and lead to Fair Labor Standards Act violations. — Angela Childers ( email@example.com )
Marketing & referrals/LTCI
Gain referrals by improving your LTCI billing practices
Market your agency’s ability to handle long-term care insurance (LTCI) policies to referral sources such as hospitals or elder law attorneys to gain referrals.
When Caring People was starting its operations in Florida, New York and New Jersey in 2001, it differentiated itself from competitors and grew into a multi-million dollar business by handling LTCI policies for clients with a full-time staffer dedicated only to this work, says CEO Steven East. East also started his own online LTCI billing business, Pillar Claims Services, which processes such claims for clients.
The agency developed a brochure its marketers gave hospital discharge planners and ultimately led to several referrals, East says. The brochure outlined how the agency would ease the discharge process and transition to post-acute care by helping clients with LTCI policies as a free, value-added service, he says.
The brochure explained how full-time staffer would handle LTCI claims, coordinate conference calls with clients and carriers to verify plan benefits and collect activities of daily living (ADL) documentation needed by the carrier to pay the claim, East says.
Agencies also should consider some of the LTCI carrier insurance agents they deal with regularly as potential referral sources for your agency, advises long-term care specialist Maryglenn Boals, founder of MgBoals & Associates of Phoenix, Ariz.
That’s because some of these carriers are attempting to entice policy buyers by offering to help them find home care agencies or other specialists, Boals says.
Treat carrier agents well by filing claims complete with all needed information on the forms the carriers provide — not your own, self-generated forms — and with as few errors as possible, she says.
Each LTCI carrier will likely have different requirements in terms of ADL documentation and other required paperwork — sometimes the same carrier will have different requirements for different LTCI policies it issues — so agencies should take care to maintain a binder with each carrier’s specific paperwork requirements.
Ask clients for LTCI policies upfront
No step will do more to project a positive image of your agency’s abilities to referral sources than being able to effectively handle the billing processes for LTCI claims, East says.
When a claim is denied, the client is often the first person to know and will call the carrier to complain when it was the agency that submitted information incorrectly, East says. Ask clients to share their LTCI policies so that your billers can glean the specific billing policies or have the billers ask carriers about their specific billing policies, he says.
You’ll want to know about the elimination days on the policy, he says. These are the number of days that must elapse before coverage begins, and typically are set at 90-day spans during which clients have to pay for services out of pocket before the LTCI coverage kicks in.
And establish a process for conducting clinical assessments by a registered nurse according to the requirements of the policy, East says.
Carriers typically require either that your agency conducts this initial assessment of the client or they have their own nurses conduct the assessment to ensure the client qualifies for services. Often this entails an evaluation of ADLs or psychological impairments that require a caregiver to watch the client, he says.
However, your agency needs to either have a nurse on staff or contract one when caring for clients with LTCI policies, East says. That’s because you’ll need such a nurse to conduct your own clinical assessment of the client and get a doctor’s order — usually from the client’s primary care doctor — to state the need for ADL services, for example, he says.
That assessment and doctor’s order will help you buttress your claim to the carrier that specific services are needed for the client should the carrier deny a specific claim, East says.
Also, make sure you check with the provider to see if any extra benefits exist in the specific policy, he says. For example, your client’s policy may include an inflation rider that can increase the LTCI daily benefit, say, from $100 to $250 a day over the course of care.
Likewise, there may be a medication management benefit — that would usually be overseen by your agency’s nurse — the client can use to help pay your agency for such services, East says.
You may also consider getting your name on carriers’ list of agencies to refer to, he says.
Carriers often maintain lists of agencies by geographic region of agencies clients can potentially use, East says.
To get on the list, first of all you have to have all of the required licenses to operate in your state, he says. Carriers will call agencies and ask them about their hourly rates for services, which often trigger agencies to lower rates below their competitors, East says.
This can lead to a “race to the bottom” for some agencies, but on the other hand, finding an acceptable rate to attract new clients can be a means to attract needed referrals, he says. Just be sure to lower your rate to a figure that makes sense for your agency.
Tips to improve LTCI carrier relations
- Ask the right questions. East has a staffer with multiple years of experience working on LTCI issues for clients, he says.
- Also, make sure your billing staffer keeps a log book of what specific types of information each carrier requires to successfully complete billing, and the name of the carrier agent your agency is working with so that it can be passed on to new employees, Boals says.
- Take down names, develop a rapport. Office staff members responsible for handling LTCI claims may not consider a LTCI carrier as a potential referral source for the agency, but they should, Boals says. That means remembering the name of an agent with a particular carrier, and which department he or she works in, so that you can ask for this person every time you call into the carrier and develop a trusting relationship with the agent, she says. This could open the door for a referral.
- Make sure billing sheets are broken out by individual client. LTCI policies are always individual contracts, Boals says. Sometimes, agencies will mistakenly file bills that combine services for related parties, for instance, and these bills will be rejected. — Nicholas Stern ( firstname.lastname@example.org )
From the February Issue:
Try to better gauge character, smarts and resilience when choosing top sales staff
Take your time and look to see if a job prospect has emotional intelligence and considers the bigger home care team when something goes wrong with a sale when choosing top sales talent that fits into the mission of your home care agency.
Remember, such a sales leader can typically double the performance of his or her predecessor within a year, says Timothy Hanold, national director of sales at Humana at Home, New York City. Hanold leads a team of six regional sales managers and a national sales trainer with more than 50 sales representatives reporting to his team.
But they can also act as an ambassador for your agency, can be earmarked for future leadership roles and will help attract and retain not just other talented sales staff, but also pull in the best clinical managers, socials workers, branch managers and administrators as well, Hanold says.
On the other hand, bringing in the wrong person as your top sales person can turn into a half-million dollar mistake over the course of a year in terms of hiring costs, compensation that can run as high as $100,000 to start, maintenance, travel and training expenses, opportunity costs, disruption costs and impaired customer loyalty, he says.
This means, in part, that when interviewing for this role, don't just let yourself be wooed by a person who has polish, speaks well and claims to have an impressive book of business and connections in the market, Hanold says.
Study sales talent character
Passion, fire and having a thick skin are important skills for sales reps, he says. But top sales talent can't be successful in home care when they're selling to hospitals and other referral sources, for instance, unless they have emotional intelligence, are able to manage those passions and be team builders both externally and within your agency, he says.
For instance, in interviews try asking such candidates to walk you through a time when what your agency's service didn't meet the expectations of a referral source, Hanold says.
He's looking for someone's response to such a question to include taking responsibility for what happened as opposed to someone
who's willing to blame his team to make himself look good.
Also, look to see whether the candidate speaks during the interview about what "we as a team" accomplished together vs. solely about herself — the latter being undesirable, he says.
At Family and Nursing Care in Silver Spring, Md., president Neal Kursban says he tries to make sure he hires sales talent that can not only drum up new business, but who also can work well with his operations team in difficult situations.
Part of the way he does this is by asking the right questions during interviews, Kursban says. For instance, he'll ask candidates to describe a challenging experience they've had with operations. He'll get a sense of applicants based on their body language and how they described handling situations when operations and sales were at a crossroad.
He's always looking to see if the candidate can be accommodating and communicate well when there is confusion, he says.
Know what you want sales stars to do
Make sure you understand clearly what role you want the salesperson to fill, advises Hanold. Making sure your candidates understand where they'll fit into your team will ultimately help them decide to work for you and stay working for you, Hanold says.
A lot of people in the industry may interchange marketing and sales roles, for example, which often involve quite different skill sets, Kursban says. Marketers are more focused on developing the strategies and tools that attract clients and help sales people to sell, while sales staff go into the field, have a lot of interactions with referral sources and recruit new clients.
Within sales roles, you may want to develop a niche where some sales staff members focus on selling to elder law attorneys,
while others look toward hospital or other facility sources, he says.
Also, make sure you clearly lay out expectations so that they understand what they're getting into and can focus on the job you want them to do, Hanold says. Is the sales person to be a hunter, searching for new clients, or a grower, looking to expand an existing client base from a particular referral source?
Another thing people neglect to ask during an interview: What sort of reporting structure will the sales person be in? For instance, some top sales talent prefer the nimbleness and flexibility of reporting directly to the owner of a smaller business, while others enjoy a more hierarchical, corporate setting that may offer more room for career advancement.
More tips for assessing top sales talent
- Make sure the top sales staff ask smart questions and listen. A pitfall for some salespeople is they talk too much to referral sources, filling the lull in conversation with features and benefits your agency can provide, Hanold says. Those benefits aren't meaningful unless they trigger the specific needs and wants of the referral source, he says.
- Therefore, ask potential candidates if they can teach buyers who are undecided how to buy home care services. The candidate should be able lay out the potential scenarios of hospitalization or going to a more expensive facility if piecemeal caregiving from neighbors and friends doesn't pan out, he says.
- Try to gauge how driven and resourceful salespeople are. This will give you a good sense of how well they'll handle some of the challenges in home care sales, which often require rethinking routines and overcoming obstacles to meeting with referral sources, Hanold says. For example, ask candidates how they approached getting in front of a difficult referral source, like a guarded elder law attorney, who put up multiple blocks and barriers to a meeting.
- Provide ample time and flexibility in meeting sales goals and expectations. Try to take at least six months to determine if sales hires are a good fit, providing them time to try different types of sales efforts, for example from closing sales in a family's home to speaking with elder law attorneys and hospital referral sources, Kursban says. Agency owners feeling pressure from the cost of hiring top sales talent can move too quickly — say, in three months — to decide if the person is the right fit before letting them go, Kursban says. — Nicholas Stern ( email@example.com)
Home care startups
Tech-savvy private duty startup decides to make its caregivers direct employees
Honor, a tech-savvy private duty startup, announced Jan. 21 that its caregivers will become direct employees instead of being used as independent contractors. The employees will become eligible for benefits such as health insurance, paid sick leave, workers' compensation and stock options.
It's unclear whether other similar startups will follow suit. But for traditional private duty agencies competing with Honor,
the changes could pose another challenge to caregiver recruitment and retention. After all, it's
unlikely other agencies will entice caregivers with stock options, for instance, says attorney
Elizabeth Pearson of Pearson & Bernard in Edgewood, Ky.
Honor, which is California-based, has been paying caregivers $15 to $17 an hour within its market. Now that it's making caregivers direct employees, it plans to offer wages that are still above industry averages while also offering caregivers benefits including health insurance, says Phaedra Ellis-Lamkins, head of Care at Honor.
Honor ultimately plans to expand nationwide. It launched in San Francisco in April 2015 and in Los Angeles in November 2015. When it launched, it announced it had secured $20 million in funding including $15 million from venture capitalist Marc Andreessen, a Netscape cofounder.
Despite the industry having high turnover rates among private duty caregivers, of the hundreds of caregivers Honor has used, perhaps only a few have left the company thus far, Ellis-Lamkins says.
Switching to use direct employees instead of independent contractors shows the company has a "long-term commitment" to its caregivers, Ellis-Lamkins says.
The switch also should give clients a sense of comfort, knowing that the caregivers coming to their home are more likely going to be the same people for the long term, she notes.
"Our belief is that fundamentally we are nurturing a relationship between the client and the caregiver," she says.
Another advantage to having direct employees is that the agency will be able to provide more uniformity in the training Honor
is able to provide caregivers.
But not all traditional agencies believe the startups will pose a huge long-term threat to the industry.
Barry Berger, president of California-based Accredited Home Care, contends that "on-demand companies" such as Honor will not succeed. Clients require a significant amount of attention prior to using services, in addition to the attention they require once they begin using services, he argues.
"The fact that we have a local presence, with consistent management, will trump the so-called convenience of setting these services up online," he argues. "At the end of the day, the client wants to be able to communicate with a live person in a location that is close to their residence."
Startups will continue to grow, adapt
The private duty startups — including Honor and HomeHero — that have emerged in the past year or so have millions of dollars in backing from investors. They're also working on building brand names, and the power of those names will strengthen consumer confidence, industry experts contend.
Honor stands out from traditional agencies in many ways, including the "simple-to-use" technology it offers, which matches clients to caregivers. Its website also promises potential San Francisco-based clients that if they sign up for care, the company will have an assessor in the clients' homes within two hours.
Honor says only the top 5% of its caregiver candidates are brought on board.
Ways your agency can retain employees
- Survey your caregivers to find out what they want when it comes to benefits. It's likely that most of your caregivers actually would prefer having higher salaries to having benefits such as health insurance they'll have to pay for partially, says Regina McNamara, president of Kelsco Consulting Group in Southington, Conn. She says many agencies have learned that if caregivers are young and healthy, they are not interested in paying to have health insurance.
- Offer tuition assistance. Providing caregivers with $1,000 per year — directly payable to the school based on a certain number of credit hours and a certain grade point average achieved — is something that would be good for employees and employers, McNamara contends. To make this work, be sure to offer an an added financial incentive for those employees to stay with your agency.
- Keep your employees busy. "The way to retain employees is to keep them busy with enough work, so they are not seeking employment elsewhere," Berger says. — Josh Poltilove ( firstname.lastname@example.org)
From the January Issue:
Closely track, document hours worked each week to comply with companionship exemption removal
By Robert W. Markette, Jr.
Closely monitor your current practices to ensure pay-per-visit employees’ regular rate is more than minimum wage and
that working time in excess of forty hours in a work week is compensated at 1.5 times the regular
These actions will help you comply with the Fair Labor Standards Act (FLSA) and steer clear of risks such as spending tens of thousands of dollars for overtime and/or minimum wage violations.
You will need to capture employees’ time spent traveling between clients’ homes, time spent in mandatory in-services and time spent at clients’ homes. And put a system in place for sharing that information between the billing and payroll departments.
For employees who are paid per visit, the regular rate may vary from week to week, depending upon the number of visits, length of visits and travel time.
For example, employees who provide services to a number of clients in the same building, such as an apartment or assisted living facility, in one week likely will have a higher regular rate than if they were visiting patients at their homes and traveling between locations for each visit.
This is because in the facility the employee will have more visits in the same amount of time than when visiting homes.
If you don’t have a timesheet, get one
Be sure your employees are turning in documentation in a timely fashion as it will be difficult from week to week to know if they have worked overtime or how to calculate their regular rate unless you have their timesheets.
Agencies that don't already use timesheets will need to develop one that can be used to record travel time in addition to time with clients.
Providers who were paying per visit may have allowed employees some flexibility on timesheets before the companionship exemption was removed. Still other providers may have relied on visit documentation. This will have to change with exemption’s removal.
Employees should be trained on the purpose of timesheets, how to complete them and the importance of submitting them to get accurate payments. Employees should also be clearly informed of the expectations for when timesheets are turned into the office.
Don’t withhold pay for lack of timesheets
Employees’ failure to submit their timesheets does not eliminate the employers’ obligation to pay the employees.
Employees who fail to follow new policies and procedures may be disciplined according to the provider’s discipline and discharge policies and procedures. But discipline should never include withholding a paycheck.
Providers may think the lack of a timesheet relieves them of their burden to pay the employee that workweek. This is incorrect. The Department of Labor presumes employers know the hours their employees worked.
This means agencies will need to develop a policy for paying the employee in good faith when they do not turn in their timesheets. This will require estimating hours worked based upon the employees’ schedules, average length of a visit and estimates of the driving time between clients’ homes.
If the employer makes a good faith effort to pay the employee even after the employee fails to submit her documentation, the employer will have done what it can to comply with the FLSA. This will assist the employer in avoiding penalties.
The employee may come to the employer later and produce evidence showing they worked more than the employer estimated. In this case, the employer may owe additional back wages, but the employer will not have engaged in any willful violation of the FLSA.
More tips for pay-per-visit caregivers
- Carefully calculate overtime wages. Providers will need to implement practices that do more than simply multiply the number of visits by the visit rate.
- Each employee’s working time will need to be entered into the system. Employers will need to then determine if the employee has worked more than forty hours in the workweek. If so, the employer will need to calculate, and pay, the overtime premium to the employee. Remember, employees are entitled to 1.5 times their regular rate for hours over forty.
For per-visit employees, the total remuneration most weeks is going to be the total number of visits multiplied by the visit
rate. The hours worked are the total hours identified as working time on the employees’
When this calculation is done, you will have identified the regular rate the employee was paid, which means you only need to calculate the additional 50% premium.
- This can be done by multiplying the regular rate by 0.5 and then multiplying the result of that calculation by the number of hours over forty. This additional amount then needs to be paid to the employee for that workweek.
- Calculate travel for per-visit rates. The employer will need to capture the time spent traveling from one client to the next. This is necessary to identify any workweek in which employees work more than forty hours, which means they are entitled to overtime.
- It is also needed to calculate the employees’ regular rate and to verify they receive more than minimum wage. The more hours the employee has worked, the lower the regular rate.
- Perhaps the simplest way to do this is have employees write down on a timesheet the time spent traveling. The timesheet should record the time at the first patient and the time leaving the last patient of the day. It could also record the last patient before a meal period or the time at the last patient before a break significantly long enough to allow the employee freedom to do what they want.
- Employees could write down the time between each client separately.
About the author: Robert W. Markette, Jr., CHC, is an attorney at the Indianapolis law firm Hall, Render, Killian, Heath and Lyman. He represents home health, hospice and private duty providers in all aspects of their operations. With more than 10 years of experience in working with these industries, Robert has developed a reputation for understanding the issues facing home care providers and has assisted clients.
Companionship exemption case
Newly filed briefs back Supreme Court appeal to block the companionship rule
New support by 12 states and by organizations representing the disabled will help a last-ditch legal effort to win U.S. Supreme Court review of the Labor Department’s companionship rule, the National Association for Home Care & Hospice (NAHC) believes.
Briefs recently filed by the states and the organizations argue against the rule’s requirement for employers to pay overtime to unskilled home support workers.
And they could help persuade the Court to consider the case against the rule, says attorney Eileen Maguire of Gilliland, Maguire and Harper, an Indianapolis firm which advises agency clients on compliance with the rule but isn’t involved in the pending litigation.
In October, Chief Justice John Roberts denied an application by NAHC and its co-plaintiffs, the Home Care Association of America and the International Franchise Association, to stay an appeals court ruling that allowed the companionship rule to take effect.
The only remaining option now is to persuade four of the High Court’s nine justices that the case should be heard on its merits anyway, a tactic with long odds against its success.
The 12 states that filed a brief are Kansas, Arizona, Arkansas, Georgia, Michigan, Nevada, North Dakota, Oklahoma, Texas, Utah, Wisconsin and Wyoming. In a joint friend-of-the-court brief, these states’ attorneys general argue in part that the requirements of the companionship rule could make home and community-based care unaffordable for their Medicaid programs.
In addition, the rule “imposes a broad obligation on the states without a clear statement that Congress intended such a result,” the 12 states contend.
A second brief, submitted by disability rights organizations including the National Center for Independent Living, contends that the rule will make it difficult for the aged and disabled to find home support aides and force many to live in institutional settings.
A decision by the Court is expected by the end of its current term this spring. — Burt Schorr ( email@example.com )