News & Updates

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.

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.

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.

2. 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.

3. 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.

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.

Certified Medicaid Long-Term Care Nursing Facilities Create PCQPAC

The following press release was distributed on Sept. 5, 2019 to nearly 300 healthcare and policy reporters across the Commonwealth.

The Pennsylvania Coalition for Quality Post-Acute Care (PCQPAC), a not-for-profit 501(c)6, has formed to advance the interest of its high-quality, Medicaid-certified, long-term care nursing facility providers as the Commonwealth transitions from the traditional Medicaid fee-for-service reimbursement program to the new Community Health Choices (CHC) Medicaid program.

CHC is Pennsylvania’s mandatory managed care program for individuals who are eligible for both Medicaid and Medicare, older adults and individuals with physical disabilities. CHC was implemented in the southwest region of the Commonwealth beginning January 1, 2018, in the southeast region January 1, 2019 and will be implemented statewide beginning January 1, 2020.

Among the stated goals of Community HealthChoices is to enhance quality care and create accountability for advancing that goal by measuring and publishing quality metrics so Medicaid patients can make informed choices.

• PCQPAC was founded to advance the goal of quality care by:
• Facilitating the ongoing contracting between high-quality member facilities and the CHC MCOs;
• Ensuring that PCQPAC member facilities will be reimbursed sustainable rates so they can continue their mission of providing quality care;
• Ensuring that Pennsylvania’s Medicaid consumers will continue to have an adequate network of high-quality skilled nursing facilities to choose from in their communities; and
• Working with our partners, the Department of Human Services (DHS) and the CHC MCOs to enhance program quality by incentivizing quality care through enhanced payment for that quality care. PCQPAC intends to work with DHS and the MCOs to assist in establishing quality parameters for contracting and payment.

High-quality, 3-5-star Medicaid certified nursing facilities interested in joining PCQPAC can reach out to Daniel Natirboff, Esq. at dann@capozziadler.com or 717-233-4101.  

About PCQPAC

PCQPAC is comprised of multiple for-profit, not-for-profit, hospital-based and general skilled nursing facilities that are enrolled in the Commonwealth’s Medical Assistance Program and all have been rated 3-5-star overall quality facilities by the Federal Government’s Center for Medicare and Medicaid Services (CMS). Currently PCQPAC has 18 skilled nursing facility members located throughout the Commonwealth and that number continues to grow as members join to advance the goal of maintaining the Commonwealth’s network of high-quality skilled nursing care providers in the challenging new environment of Medicaid Managed Care.