Bill in Congress Would Allow Health Savings Accounts Pay for Home Care

New legislation introduced in both the Senate and House of Representatives would allow health savings account (HSA) funds to be spent on home care services. 

U.S. Senators Kyrsten Sinema (D-AZ), Rob Portman (R-OH), Marco Rubio (R-FL), Tom Carper (D-DE) and Representative Katie Porter (D-CA) along with 20* of her House colleagues as original cosponsors have introduced the Homecare for Seniors Act, which will allow individuals over 65 the ability to use savings from their tax-free health savings accounts (HSAs) for qualified homecare expenses that supports seniors with activities of daily living. 

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CMS Announces Hospice Outcomes & Patient Evaluation (HOPE) Beta Test Recruitment

CMS announced late last Wednesday that they have initiated recruitment for hospices to participate in a beta test of the HOPE instrument and are looking to include hospices that have not been part of previous testing:

“CMS and their contractor, Abt Associates are now recruiting Medicare-certified hospice providers to participate in a beta test of the draft hospice patient assessment instrument called Hospice Outcomes & Patient Evaluation (HOPE). Recruitment ends June 14, 2021. Data collection is anticipated to begin in fall 2021.

The detailed recruitment announcement and application for participation are available on CMS’s Hospice QRP Provider and Stakeholder Engagement webpage, at this link: https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/Hospice-Quality-Reporting/Hospice-QRP-Provider-Engagement-Opportunities.html

Those interested in participating should complete the application and email to [email protected] by June 14, 2021.

The HOPE development work is under CMS contract number 75FCMC18D0014 and task order number 75FCMC19F0001.”

Chance to Provide Input to the National Association for Home Care & Hospice on Proposed FY2020 Hospice Payment Rule

NAHC is in the process of developing comments to respond to the FY2022 hospice payment rule and the numerous changes and several requests for input that CMS has proposed. Following is a list of a number of the changes and specific requests for input:

• Feedback on CMS hospice utilization data, spending outside of hospice, determinations of relatedness/unrelatedness, visits in the last week of life, and other issues 

• Revision and rebasing of the labor shares of the hospice payment rates

• Clarifications to the regulations governing the election statement addendum requirement that was implemented on October 1, 2020

• Making permanent select regulatory blanket waivers that were issued during the COVID-19 PHE

• Inclusion of a new claims-based Hospice Care Index (HCI) measure as part of the Hospice Quality Reporting Program (HQRP)

• Removal of the seven Hospice Item Set (HIS) measures

• Updates on progress related to development of the HOPE assessment instrument

• Details on modified plans for refresh of data due to the COVID-19 PHE exemptions

• Addition of a CAHPS Hospice Survey star rating

• A Request for Information (RFI) on adoption of a standardized definition of Digital Quality Measures (dQMs) across Quality Reporting Programs and the potential use of Fast Healthcare Interoperable Resources (FHIR) for dQMs within the HQRP (FHIR is an open source standards framework used in both commercial and government settings created by Health Level Seven International that establishes a common language and process for all health information technology)

• A Solicitation of Comments to assist in transformation of CMS’ quality measurement enterprise to be fully digital

• A RFI on closing the health equity gap in post-acute care quality reporting programs

• A Solicitation of Public Comment on whether activities related to measures adopted as the result of the Improving Medicare Post-Acute Care Transformation (IMPACT) Act should be expanded for potential utilization under the HQRP (like aspects of SPADEs)

• Changes to the Home Health QRP.

NAHC has developed three surveys to help facilitate submission of your comments/thoughts on the various proposals and information requests to NAHC; the surveys are available at the following locations:

• Proposals related to the Election Statement Addendum and CoP Changes.  Survey available HERE.

• Proposals that will impact Hospice Quality Measures and the Hospice Quality Reporting Program.  Survey available HERE.

• Request for input on Hospice Utilization Trends and Change to the Labor Shares of the hospice payment rates.  Survey available HERE.

NAHC will review responses to the surveys for potential inclusion in NAHC’s comments to CMS, which are due on June 7.

DOL Withdraws Trump Administration Independent Contractor Test

From SESCO Management Consultants

The U.S. Department of Labor (DOL) has eliminated a Trump administration end-of-term rule for determining whether workers should be classified as independent contractors or employees under the Fair Labor Standards Act (FLSA). The former administration rolled out the rule in January 2021, and though it went through the full rulemaking process, it never took effect.

Current Economic Realities Test

As it stands, the DOL’s current guidance on the factors considered under the economic realities test, last updated in July 2008, remains in place. These factors include:

• The extent to which the services rendered are an integral part of the principal’s business;
• The permanency of the relationship;
• The amount of the alleged contractor’s investment in facilities and equipment;
• The nature and degree of control by the principal;
• The alleged contractor’s opportunities for profit and loss;
• The amount of initiative, judgment or foresight in open market competition with others required for the success of the claimed independent contractor; and
• The degree of independent business organization and operation.

Withdrawal and Dispute

On March 12, 2021, DOL proposed to withdraw the rule prior to its effect, an action that met opposition from business groups. On March 26, 2021, business groups challenged the proposed withdrawal in court, arguing that the DOL failed to provide a meaningful notice and comment period in violation of the Administrative Procedure Act. This case, however, remains in its early stages.

Possible Alternatives and Consequences for Employers

Since his inauguration and in his campaign, President Biden has signaled that he intends to make worker-friendly policies a priority in his administration. Biden has stated that he supports an “ABC Test” for independent contractors, similar to the oneCalifornia adopted in 2018,imposing a fairly restrictive standard for a person to qualify as an independent contractor.

Regardless of the test used, the Biden-era DOL, under Secretary Marty Walsh, likely will favor classification of workers as employees, rather than as independent contractors. For example, as recently as April 30, 2021, Walsh stated that, in many cases,gig workers should be classified as employees. Employers that utilize independent contractors should consider evaluating whether these individuals are appropriately classified, recognizing that this is a point of focus for the Biden-era DOL.

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