News & Updates

Take Control Of Your Resident Accounts Receivable: Your Resident’s Resident Representative

I want to focus this installment of our series known as “Take Control of your Accounts Receivable” on a critical player in your efforts to watch your bottom line: the resident’s “Resident Representative”, or, as some nursing facilities in Pennsylvania refer to this person, the “Responsible Party” or “Designated Representative”.  Our installments in this series share with you tips, legal updates, personal observations, and “lessons learned” to help you improve the effectiveness of your Accounts Receivable Management Program. 

Why do I want to devote this space to a discussion of the Resident Representative?  The weakest link in the admissions and account management process that negatively impacts a nursing facility’s bottom line is frequently the identification and preparation of a resident’s Resident Representative.

            The reasons for this weak link include one or more of the following:

  1. The Admission Agreement lacks a clear definition, or any definition whatsoever, of a Resident Representative, or it lacks a description of the duties and responsibilities of the Resident Representative;  
  2. The Admission Agreement properly explains that a Resident Representative will not be held personally liable for the debt, but, it fails to disclose that a Resident Representative can potentially be held financially liable in the amount that he or she fails to transfer from the resident’s income or assets despite having access to the resident’s resources;
  3. The Admission Director identifies the resident on the first page of the Admission Agreement as the Resident Representative, although a member of the resident’s family or a friend signs the signature line on the last page of the Admission Agreement;
  4. The signature line of the Admission Agreement for the Resident Representative does not identify the signatory as the resident’s Resident Representative;
  5. The Admission Director fails to identify a Resident Representative or neglects to name the person on the first page of the Admissions Agreement; 
  6. The Admission Director neglects to have the Resident Representative sign the last page of the Admission Agreement,  which is a legally enforceable contract;
  7. The Admission Director fails to adequately explain to the Resident Representative his or her duties or responsibilities, including assistance in the MA application process.  Or, worse, the Admission Director directs the Resident Representative to not make any payments or escrow the resident’s income while Medicaid is pending;
  8. The Admission Director fails to adequately explain to the Resident Representative that the Admission Agreement is a legally enforceable and binding contract; 
  9. The Admission Director or Business Office fails to explain to the Resident Representative the benefits of arranging direct deposit of the resident’s Social Security income either as Representative Payee or through the Resident Fund Management System.  The same issue applies to the resident’s pension income;  
  10. The Business Office fails to mail a monthly bill to the Resident Representative during the first several months after the facility admits the resident as a matter of policy while MA is pending; and,
  11. Finally, the Business Office simply allows the Resident Representative to avoid payment or not cooperate for too long.  In other words, the Resident Representative is taking advantage of a disorganized Business Office or its passive attempts at collection.    

When the weak link breaks . . ..   I am certain that you have experienced one or more of the following situations as a result of the weaknesses above:  

1.  The family spends the resident’s money on non-allowable expenses although the relative or resident truly believes that these expenditures were justified;

2.  A relative intentionally or fraudulently diverts the resident’s funds for personal consumption or investments; 

3.  The Resident Representative fails to fully cooperate in the Medicaid application process, including the transfer of financial documents or information; or, 

4.  Although the CAO directs the Resident Representative to “spend down” the resident’s funds to qualify for Medicaid, he or she refuses, even if the amount is nominal.  As a result of this last scenario, you’re attempting to collect against a private pay resident with insignificant financial resources.            

What law allows you to contract with a resident’s family member or friend to act as the Resident Representative?  The term, “Resident Representative,” is generally accepted under the law.  The Nursing Home Reform Act of 1987 permits the nursing facility to contract with a person who has access to the resident’s income and resources to transfer payments from the resident’s income and resources.  42 U.S.C. §1396r(c)(5)(B)(ii). 

Furthermore, the Pennsylvania Administrative Code permits a resident to name a Resident Representative.  28 Pa. Code §201.24(a).   This section of the Code defines the Resident Representative as someone who can make decisions on behalf of the resident, but it does not obligate a Resident Representative to make payments.  In addition, this section prevents a nursing facility from naming an employee as a resident’s Resident Representative, unless a court appoints the employee as the resident’s guardian.       

Accordingly, an Admission Agreement must be clear as to the definition, duties, and responsibilities of a Resident Representative to be legally enforceable.  If the Admission Agreement is clear, the Resident Representative can be held legally liable for his or her failure to perform his duty to remit payment form the resident’s funds.  Of course, the Resident Representative may also be held liable personally if he diverts the resident’s funds for non-allowable purposes, which requires a court order.    

Is a Resident Representative a Guarantor?  No.  As most of you are aware, Medicaid law expressly restricts a nursing facility that is eligible for Medicaid or Medicare reimbursement from requiring a third party guarantee of payment to the facility as a condition of admission or continued stay.  A Guarantor is someone who is personally liable for a debt from his or her own assets.  An example of a Guarantor is the father who co-signs a car loan for his daughter.  The law does not prohibit a third person voluntarily guarantee payment to the nursing facility.  I continue to see, however, the term Guarantor in admission agreements, admission fact sheets, or account invoices even though the admission agreement does not clearly obligate a third party as a guarantor.     

Why do you need to take a look at the Resident Representative clauses of your Admission Agreement?  Although Pennsylvania court case law regarding the legal financial liability of a Resident Representative is scarce, the Allegheny County Court of Common Pleas recently addressed this issue in Five Star Quality Care, Inc d/b/a Overlook Green v. Joyce and Charles Yablonski.  The opinion of this Court will have a strong persuasive effect on other county courts throughout Pennsylvania.  In summary, the Court disallowed the nursing facility’s claim against a resident’s “Responsible Party” because the Admission Agreement did not “clearly and unambiguously” define the term “Responsible Party” or obligate the Responsible Party to guarantee payment.  In fact, the Court expressly preferred the term “Resident Representative”, rather than “Responsible Party”, because the usage of “Resident Representative” is more widely accepted and defined in state statutes.   

Because it is the nursing facility or its management company that drafts the Admission Agreement, the burden is on the nursing facility to ensure the requirements and obligations of a Resident Representative are “clear and unambiguous.”  Otherwise, the nursing facility’s attempts to collect a debt against a Resident Representative in a court may be weakened or unsuccessful. 

 If you would like more information on how your Admission Agreement can be used or modified to protect your facility’s bottom line, including an analysis and revision of the contract terms related to the Resident Representative, you may contact Andrew R. Eisemann, Esq. at our Firm at andrewe@capozziadler.com or 717-233-4101.

Keeping Compliant Where Federal Overpayment Rule Set Aside, Affordable Care Act Ruled Unconstitutional, Appeals Pending

In 2016, CMS published its Overpayment Rule, 81 F.R. 7652 (2/12/2016), effective March 14, 2016, 42 CFR Part 401, Subpart D, to clarify when and how Medicare and Medicaid providers were to identify and return “overpayments” in order to avoid False Claims Act liability added by the Affordable Care Act (ACA).  The new Compliance and Ethics Program Condition of Participation for Nursing Facility Providers, 42 CFR § 483.85, with its effective date of November 28, 2019 coming soon, also implements a requirement added by the ACA. 

While efforts to pass laws that “repeal and replace” the ACA have not succeeded to date, there have been two recent court victories on this front.  First, in September 2018, the U.S. District Court for the District of Columbia, in a challenge to the Overpayment Rule under the Federal Administrative Procedures Act (APA), ruled that the entire Rule must be set aside.  UnitedHealthcare Ins. Co. v. Azar, 330 F.Supp.3d 173 (D.D.C. 2018), currently on appeal to the U.S. Court of Appeals for the D.C. Circuit (No. 18-5326). 

Second, in December 2018, the U.S. District Court for the Northern District of Texas ruled, in a challenge by several States to the entire ACA as amended by the Tax Cuts and Jobs Act of 2017, reducing the ACA’s shared responsibility payment to -0-, that the entire ACA, including the overpayment provision, must be stricken as unconstitutional.  Texas v. U.S., 340 F.Supp.3d 579 (N.D. Tex. 2018).  Since the District Court granted a stay of its decision pending review by the U.S. Court of Appeals for the Fifth Circuit, 352 F.Supp.3d 665 (N.D. Tex. 2018), appeal pending at No. 19-10011, the ACA remains “in effect.” 

Even if these two efforts are successful in further reducing providers’ False Claims Act liability, these lower court victories should not change provider compliance program behavior.  Longstanding OIG Compliance Guidance, issued before the enactment of the ACA, advised that providers must take decisive steps to correct identified noncompliance, including the return of any overpayments.  Both the OIG and the Pennsylvania Medicaid Program have established self-disclosure protocols for providers “to voluntarily come forward and disclose overpayments or improper payments.” 

Participation in these programs and continuing current compliance program efforts can reduce provider risks, including avoidance of compulsory Corporate Integrity Agreements, reduction in potential damages, and deferral of actual repayment pending settlement.  State and Federal audits for potential overpayments are also not letting up. 

If you have concerns about how to deal with possible overpayments identified through your compliance program or related to recent audit results, you may contact Bruce G. Baron, Esq. (bruceb@capozziadler.com) at our Firm. 

Protecting Beneficiary Rights in the the Managed Care Environment

Bruce G. Baron, Esquire (bruceb@capozziadler.com)

 The USDHHS Office of Inspector General (OIG) is expected to issue its Work Plan Report (OEI-09-19-00350) next year (2021) on the results of its review of Medicaid Managed Care Organization (MCO) Plans’ denied services and payments that were overturned on appeal to help monitor for improper denials of access to covered services that benefit the MCO’s bottom lines. 

In September 2018, the OIG issued a critical report of Medicare Advantage MCO Plans (OEI-09-16-00410) that cited 45% of the Plans for providing incomplete or incorrect information to beneficiaries thereby inhibiting their exercise of appeal rights (only 1% of access to coverage decisions were appealed in the period reviewed), while 75% of denials that were appealed were overturned in the appeal process.  The 2018 Report recommended that CMS: (1) enhance its oversight of MCO contracts including those with extremely high overturn rates and/or low appeal rates and take corrective action as appropriate; (2) address persistent problems related to inappropriate denials and insufficient denial letters in Medicare Advantage; and, (3) provide beneficiaries with clear, easily accessible information about serious violations by MCOs.

Federal Managed Care regulations (42 CFR §§ 438.228(a), 438.400-438.424) require Medicaid Managed Plans to provide “timely and adequate notice of adverse benefit determinations” (42 CFR § 438.404), including the right: (a) to obtain reasonable access to and copies of all documents relevant to the determination at no cost to the beneficiary ; (b) to get information on the procedures required to perfect and to expedited, as needed, the appeal; and, (c) to get information on how to continue benefits pending the resolution of the appeal. 

The Medicaid Managed Care Plans must also provide information about the appeals process to all participating providers (42 CFR § 438.414); and, nursing homes must also provide residents with information regarding Medicaid coverage and related State and local advocacy organizations (42 CFR §§ 483.10(g)(4)(ii-iii)).  Nursing homes that are subject to the Conditions of Participation and any related State licensure regulations (e.g., 28 Pa. Code §   201.2, incorporating the 1998 version of resident rights rules) should update and monitor the application of their policies and procedures to assure residents’ rights related to Medicaid coverage under their Medicaid Managed Care Plans given the OIG’s concerns to prevent inappropriate denials of services and payments.

Assuring Compliance with new Transfer and Discharge Rules

Bruce G. Baron, Esquire (bruceb@capozziadler.com)

The USDHHS Office of Inspector General (OIG) is expected to issue its Work Plan Report (OEI-01-18-00250) later this year (2020) on the extent to which LTC Ombudsmen address involuntary transfers and discharges and the extent to which State Survey Agencies (e.g., Pennsylvania Department of Health) investigated and took enforcement actions against nursing home for inappropriate involuntary transfers or discharges.  Under the 2016 updates to the Conditions of Participation regulations for transfers and discharges, 42 CFR § 483.15(c-e), the LTC Ombudsman must receive a copy of the required notice (42 CFR § 483.15(c)(3)(i)).   

In Pennsylvania, the LTC Ombudsman has filed appeals with State Medicaid Agency (the Bureau of Hearings and Appeals of the Pennsylvania Department of Human Services pursuant to 55 Pa. Code Chapter 1181 Appendix N) on behalf of nursing facility residents pursuant to the current Conditions of Participation, including obtaining an order to Stay the Transfer/Discharge or Readmit the Resident. 

Nursing homes that are subject to the Conditions of Participation and any related State licensure regulations (e.g., 28 Pa. Code §   201.2, incorporating the 1998 version of the transfer and discharge rules) should update and monitor the application of their transfer and discharge policies and procedures to assure compliance with the current requirements, including the timing, content, notice and safe/orderly requirements, as well as advance notice to residents of their rights under the regulations, given the increased oversight by the OIG, the LTC Ombudsman, and the State Survey Agency.

Pennsylvania Employers Have a Duty to Protect and Secure Employee Data

Brandon S. Williams, Esq. brandonw@capozziadler.com

In a recent decision, the Pennsylvania Supreme Court found the University of Pittsburgh Medical Center liable to employees for not taking reasonable care to protect employee data.  UPMC, which had gathered the personal data from employees as a condition of employment, was hacked and the personal information of 62,000 employees and former employees was compromised.  Although the hackers acted illegally in obtaining the information from UPMC computer systems, the Court ruled that UPMC should have anticipated the possibility of hackers attempting to access the information and should not have stored the information on its internet-accessible computer system which lacked adequate security measures, including proper encryption, adequate firewalls, and adequate authentication protocol.  The Court held that employers are expected to exercise “reasonable care” – including taking measures to prevent hacking – in securing employee data.

Employers are now on notice that they have a duty to ensure their systems are equipped with security measures to guard against data breaches and should do so by:

  1. Reviewing and tightening internal policies and procedures related to data protection in the area of both data collection and storage.
  2. Engaging information technology professionals to develop and regularly update effective ways to protect employee data.
  3. Training employees regarding data security.
  4. Maintaining documentation of data protection efforts.
  5. Developing a protocol to be followed in case of a data breach.

Contact Brandon Williams, Esq. at BrandonW@CapozziAdler.com or 717-233-4101 for more information.

TAKE CONTROL OF YOUR RESIDENT ACCOUNTS RECEIVABLE: The 12 Most Common Mistakes Made by Long-Term Care Facilities

Andrew R. Eisemann, Esquire   andrewe@capozziadler.com

This is another installment of our series, “Take Control of your Resident Accounts Receivable”.  As you are already aware, the financial survival of most nursing facilities in Pennsylvania depend on how aggressively and effectively their business office managers administer their accounts receivable.  This series is devoted solely to the design, management, and improvement of your Accounts Receivable Management Program and your collections efforts.  Also, here we share with you tips, legal updates, personal observations, and “lessons learned” to help you improve the effectiveness of your Accounts Receivable Management Program. 

This installment summarizes the 12 most common mistakes that I have seen long-term nursing care facilities make that negatively impact their Accounts Receivable and their Days Revenue Outstanding (DRO) Reports. 

You provide an extremely valuable service, however, it is clear that most consumers do not plan for or want to pay for the nursing care and services that you provide.  As you have seen in your experience, and as I identified in the eighth installment of this series, residents and their families will frequently not place your rights as a creditor high on their financial priorities.  Each of the following observations likely apply to your facility in varying degrees:

  1. You are not coordinating the efforts of your staff.  The best AR Management Programs always synchronize the efforts of the NHA with the Business Office staff, the Social Worker, Admissions Director/Coordinator, Director of Nursing, and central billing office, if any.  Each one of these staff members has a role in preventing problem resident accounts and financial liabilities.  In fact, the very best programs require the Business Office Manager to physically participate in a resident’s Care Conference when there are financial issues involved.  The NHA should address financial or payment issues with the Staff during Staff Meetings.  The key is to enforce open communication and control measures among the Staff. 
  2. Your Facility’s Admissions Process is a wide-open gate.  Although your census isa top priority, the weakest link in your AR Management Program is probably your admission and screening process.  Review the screening process in your Admissions Office, including the screening of financial information and family members.  Are you screening applicants to determine whether the applicant was discharged from another facility?  Is your applicant a US citizen or is eligible for Medicaid with a Green Card?  Was your applicant discharged from a hospital and is eligible for Medicare after a qualifying stay?  Do you have a system in place to prevent the readmission of problem former residents?  Are you collecting and saving bank or other asset information?  Are your Admissions Director and BOM communicating with each other?  The worst offense by a weak Admission Office is the failure to properly complete and maintain a copy of the Admission Agreement.  Review your Admission Agreements for your admitted residents to ensure the Agreement is executed fully, including the names and signatures of the contracted parties.  Also, ensure you actually have an Admissions Agreement for each resident.    
  3. Your Facility’s Admissions Agreement does not protect your rights as a Creditor.  You have rights under state law as a creditor.  Your facility is not only a provider of excellent nursing care.  It is also a Creditor.  Your Admissions Agreement is a contract.  It is not merely a Notice listing all the care and services that you will provide the Resident.  I frequently review Admissions Agreements that are poorly drafted as a contract and lacking provisions that protect you in the event of default, non-payment, or Bed-Hold situations.  There is no reason to use a weakly drafted Admission Agreement.      
  4. Your Facility’s Admission Agreement fails to explain the duties and responsibilities of the Resident Representative.  A contract that fails to adequately define the responsibilities of the Resident Representative (some facilities make the mistake of using the title “Responsible Party” or other name) is not enforceable against a Resident Representative who fails to transfer the Resident’s income or complete a Medicaid application.  I frequently review Admission Agreements that require the signature of a Resident Representative, but do not include the required provisions to hold a Resident Representative financially liable by a court.  The key is to have a strongly worded Admission Agreement that is enforceable against a non-compliant Resident Representative. 
  5. Your staff is not adequately preparing the Resident Representative or the Resident if the Resident is a self-admit.  Many facilities include the Business Office immediately and directly in the admission process specifically to ensure the Resident Representative or Resident understands the procedures and responsibilities related to Medicare benefits, Medicaid limitations, insurance co-pays, private charges, and income transfer.  Too frequently a Resident Representative will allege that he or she did not understand his or her expectations, including the payment of income while the Resident is MA Pending.  Finally, never advise the resident or Resident Representative that your facility will assume responsibility for the Medicaid application.  The resident, or his or her Resident Representative, is ultimately responsible.  
  6.  Your staff is not adequately or regularly screening your Accounts Receivable Report.  The NHAs or EDs who review and maintain their AR Reports adequately and on a regular basishave a good understanding of their facility’s weaknesses with specific payer sources.  Question the balance of each payer source and watch deadlines for claims.
  7. You are failing to aggressively “Stop the Bleeding” on a problem resident account.  Apply a tourniquet to an account that is increasing each month for reasons that can be controlled.  The Business Office must be aggressive and timely to initiate involuntary discharge procedures, take control of social security and pension income, report suspected financial exploitation to its Area Agency for Aging (AAA), schedule a Care Conference with the BOM present, file a “bare bone” Medicaid application, and initiate litigation.   Your Business or Billing Office must effectively follow up with residents, Resident Representatives, or families to collect outstanding Medicare co-pays, Patient Pay Liability, or Private Pay charges.  A weakly worded Demand Letter from the Administrator mailed more than twice to the debtor(s) is not an effective collections program.  The debtor is likely also receiving collection letters from other creditors or collection agencies.  This debtor will ignore your “requests for payment”.  A strong Demand Notice from a law firm to all appropriate members of family is always more effective in forcing compliance with the Admission Agreement.  A facility with an effective screening process or Business Office will have bank information available for a possible garnishment of a debtor’s account(s) or liquid assets.          
  8. You are too passive with your Medicaid Pending accounts.  These accounts must be watched closely during your AR review.  Identify the source of the delay, including Options Assessment, County Assistance Office caseworker, lack of cooperation by family or resident, or ineffective Guardian, or Medicaid planner.  Involve your attorney to demand compliance or seek a Court Injunction Order against a resident, Power of Attorney, or Resident Representative.  As a last resort, initiate litigation for breach of contract.
  9. Your Business Office is not billing while the Resident is Medicaid Pending.  Ensure the resident or Resident Representative is receiving monthly Invoices while the resident is MAP.  As a minimum, you should be receiving the Resident’s income, minus an agreed amount for a spousal allowance or home maintenance allowance.  A family that becomes “addicted” to a resident’s social security, pension, or annuity income.   Ensure the resident, spouse, Resident Representative, or POA receives a copy of the Notice to Medicaid Applicant (MA/PA Form 162) immediately if the payment of Patient Pay Liability is required.  Frequently, a spouse will ignore the payment of PPL if the CAO authorizes only a partial Spousal Allowance. 
  10. Your staff is not appealing the denial of Medicaid benefits.  All Business Office Managers are aware that the deadline to submit an appeal is 30 days.  If you need time to gather additional financial documentation from the family, then submit the appeal on Day 29.  Do not allow the appeal period to lapse and lose your rights for automatic appeal.  Because the time period is short, immediately involve your attorney for assistance.  The DHS will allow a late appeal (“nunc pro tunc”) under the most unusual circumstances.  Ensure your Business Office or Medicaid biller is closely monitoring denials for an appeal or for a possible 180-day exception request later. 
  11. You are not developing or enforcing a Policy for Social Security Representative Payee.  You will identify missing social security income when you review your AR Report.  Social Security benefits are a federal entitlement not subject to the personal discretion of an Agent under a Power of Attorney, Resident Representative, or Guardian.  These funds must be paid for the “current care and maintenance” of the Beneficiary.  Accordingly, you have several options if you are not receiving your resident’s social security income by check or direct deposit through RFMS.  Your resident can execute SSA Form 4164 at the regional Social Security office if it is safe to transport the resident there.  Or, apply for Representative Payee with SSA Form 787 (Physician Statement) and SSA Form 11 if your resident is not competent to handle his or her personal finances. 
  12. You are not following up on delinquent accounts of Former or Deceased Residents.   The Business Office is usually overwhelmed with daily requirements and emergencies.  As a result, the delinquent accounts of former residents or deceased residents are frequently set aside and forgotten.  The account may still be MA Pending, which requires the submission of additional documents to obtain approval. Involve your attorney to demand payment from the former resident, Resident Representative, or family.  A discharged resident may have died and an Estate Claim is appropriate.  In Pennsylvania, the debt to a nursing facility for the last six months of the decedent is a high priority claim.         

These are your Dirty Dozen.  The above is a summary of the 12 most common mistakes or bad practices that I have witnessed while working with countless competent and professional NHAs and BOMs over the years.  I will address these common mistakes in more detail during our next semi-annual Seminar at Hollywood Casino on November 8, 2019.

If you would like more information on how we can provide further analysis and legal assistance to improve the management and liquidation of your Accounts Receivable, you may contact Andrew R. Eisemann at our Firm at andrewe@capozziadler.com or 717-233-4101.

An Update on Recent Life Safety Rule Changes

Bruce G. Baron, Esq. bruceb@capozziadler.com

In our Fall 2017 and Fall 2018 Newsletters, we reported that CMS and the National Fire Protection Association (NFPA) were studying possible corrections to the Fire Safety Evaluation System (FSES) to lessen unexpected adverse impacts on nursing facility providers.  On July 18, 2019, CMS published a Proposed Rule, 84 Federal Register 34737, that would amend 42 CFR § 483.90 (Physical environment) with proposed corrections to solve this problem: “to allow older existing LTC facilities to continue to use the 2001 Fire Safety Equivalency System (FSES) mandatory values when determining compliance for containment, extinguishment, and people movement requirements…to remain in compliance…without incurring substantial expenses to change their construction types, while maintaining resident and staff safety.” 

In the Rulemaking, CMS recognized that the 2012 FSES requirements had unexpected consequences for many older facilities.  CMS provided a temporary fix for the problem by authorizing “5-year Time-Limited Waivers” of the 2012 FSES requirements.  If this Proposed Rule becomes effective, it will eliminate the need for such waivers in most cases.  We recommend that nursing facility providers with current waivers or awaiting waiver determinations review the Proposed Rule with their engineering and architectural consultants to confirm that the Proposed Rule will eliminate their waiver needs. 

If you or your consultants have questions about the Proposed Rule or your current time-limited waivers, you may contact Bruce G. Baron, Esq. (BruceB@CapozziAdler.com) at our Firm.

Employers Should Once Again Prepare for Changes in Overtime Exemption Threshold

Brandon S. Williams, Esquire brandonw@capozziadler.com

Since the end of the Obama Administration, there has been uncertainty in what would become of the overtime exemption levels found in the Federal Fair Labor Standards Act (FLSA).  The Obama Administration had proposed increasing the overtime exemption salary threshold, which would raise the salary requirements necessary for an employee to be designated as overtime exempt.  After legal challenges and delays, the Trump administration put the Obama-era proposals on hold.  Now, the Trump administration has signaled their intention to increase the threshold . . . but not by nearly as much as proposed by the previous administration.

In order to be designated as overtime exempt under the FLSA, employees must be paid a minimum salary AND meet certain tests regarding their job duties (e.g., executive, administrative, professional, outside sales, and computer employees).  The Obama administration had proposed to increase this salary threshold to $47,476/year ($913/week). Further proposed changes would have established automatic updates of the threshold. 

In March of 2019, the Trump administration announced its recommendations at much lower levels.  The new proposed rule would raise the salary threshold necessary to qualify as overtime exempt to $35,308 annually (or $679 per week).  The new rule does not include any automatic updates to the salary thresholds.

It is uncertain when the new rule will take effect, but it may be as soon as January of 2020.  Employers should begin reviewing the job descriptions, job duties, and compensation of exempt employees now in order to determine whether any exemption classifications may be subject to scrutiny under the anticipated salary levels.

Contact Brandon Williams at BrandonW@capozziadler.com or (717) 233 4101 about the changes in overtime exemption or with other employment related questions.

New Assessment Tool Now in Place for Clinical Level Of Care Eligibility

Bruce G. Baron, Esq. bruceb@capozziadler.com

On April 1, 2019, DHS issued OLTL Bulletin IEB-19-04 (Implementation of the Functional Eligibility Determination Process) to provide for the use of the new FED Assessment Tool in place of the previous “LCD” (Level of Care Determination) Tool for all initial assessments of Clinical Eligibility for nursing facility services, whether provided in a nursing home or through a home- or community-based program, whether provided in through Community Health Choices LTSS or not.   In addition to the transition to the new FED Assessment Tool, this Bulletin makes some significant changes to the process:

  1. Where the individual’s MA-51 supports NFCE (Nursing Facility Clinically Eligible), but the FED Assessment score results in a NFI (Nursing Facility Ineligible) determination, the results must be forwarded to a DHS Physician for review and final determination.  Under the prior process in such cases, the Area Agency on Aging’s (AAA’s) Physician Consultant had to be involved in resolving such conflicts.  The transmittal to the Physician Consultant can include an Assessor’s own comments about reasons why the Assessor believes the FED results may be questionable; however, DHS has not issued any guidance to the Department Physician(s) to date as to the documentation or other information to be considered in resolving such issues.  Under the prior LCD process, the Department of Aging had guidelines as to what information and documentation was required in order for an assessment to be deemed complete.  The OLTL Bulletin does not expressly exclude consideration of the Department of Aging’s standards.
  1. Where in such cases the Department Physician confirms the NFI determination, the results are issued to the applicant by OLTL (not by the AAA) and must include an explanation of why the individual is not NFCE along with information on filing an appeal.  Where the result is a NFCE determination, then the application will be forwarded to the County Assistance Office (CAO) for determination of financial eligibility for Medicaid coverage and issuance of a PA-162.
  1. Appeals of OLTL NFI Determinations must be initially filed with OLTL, not with the CAO or the Bureau of Hearings and Appeals (BHA) pursuant to the requirements of 55 Pa. Code Section 275.4(a)(2)(i) and DHS’s CMS Waiver Agreement (Appendix F).  NOTE: if such a decision is not issued by OLTL, but by the AAA, our Firm recommends that the appeal be filed with both and with the CAO, since the flow of documents has sometimes come out of the CAO instead of OLTL.

Our Firm recommends that, since this is a new system, individuals and providers consult with counsel as to the validity of results and potential appeal issues.  DHS has received many comments on the new FED system and the OLTL Bulletin; and, has not responded to many of them so far.  If you have questions or a particular case to discuss, you may contact Bruce G. Baron, Esq. of our Firm at bruceb@capozziadler.com or 717-233-4101.

Philadelphia Employers Should Remove Past Wages Questions from Employment Applications

In 2017, the City of Philadelphia passed an ordinance prohibiting employers from asking applicants about their past wages with prior employers.  The Ordinance had been stayed pending court challenges, but a recent decision of the Third Circuit Court of Appeals upheld the Philadelphia Wage Equity Ordinance, paving the way for implementation.  City representatives have indicated that the effective date will be set by the city after consultation with the business community.

Specifically, the Ordinance prohibits employers hiring for a position located within the City of Philadelphia from:

  • Asking a prospective employee about their wage history;
  • Requiring disclosure of wage history in order for an applicant to be considered for an interview or as a condition of employment;
  • Relying on an employee’s wage history in setting wages for an employee (unless the employee knowingly and willingly discloses their wage history);
  • Retaliating against an employee or prospective employee for failing to comply with any inquiry or other act made unlawful by the Ordinance; or
  • Failing to prominently display a fair practices notice issued by the Philadelphia Commission on Human Relations.

While this specific ordinance only applies to Employers located within the City of Philadelphia, all employers are encouraged to maintain awareness regarding local ordinances that may affect their hiring or operational practices.

For more information, contact Brandon Williams, Esq. at BrandonW@CapozziAdler.com or (717) 233-4101.