Plugged In To Health

November 22, 2021

Healthcare & Policy Coverage Across New York State

The team at Hinman Straub has released Plugged In To Health; a newsletter providing healthcare and policy coverage across New York State.

What’s Inside Plugged In To Health

  • DOH Updates Nursing Home Visitation Guidance
  • NYSOH: 2022 Enrollment Period is Now Open
  • DOH Issues Religious Exemption Update on Vaccine Mandate for HCP
  • Managed Care Policy and Planning Meeting
  • PHHPC Meetings
  • SUNY and CUNY – Nurses For Our Future Scholarship
  • $1.5 B in Funding for Developmental Disabled Care Professionals
  • Regulatory Update
  • Legislative Update
  • Coming Up
  • Quick Links

DOH Updates Nursing Home Visitation Guidance

On November 16, 2021, the Department of Health (DOH) issued a “Dear Administrator Letter” (DAL NH 21-27: Updated Visitation Guidelines) to nursing homes throughout New York State, requiring nursing homes to adhere to provisions of the updated visitation guidelines provided by the Centers for Medicare and Medicaid Services (CMS) in QSO-20-39-NH – REVISED that was issued on November 12, 2021.

Revisions within the CMS guidance acknowledge the widespread increase in COVID-19 vaccination rates among nursing home residents and staff. Further, the CMS guidance acknowledges that there are still concerns associated with visitation, such as visitation with an unvaccinated resident, and reiterates the requirements for nursing homes to adhere to core principles of COVID-19 infection prevention that mitigates these concerns. Thus, the CMS guidance states that: Visitation is now allowed for all residents at all times.

The DOH guidance also reiterates the expectation that all nursing homes adhere to the Core Principles of COVID-19 Infection Prevention which include the addition of the following principle.

  • Visitors who have a positive viral test for COVID-19, symptoms of COVID-19, or currently meet the criteria for quarantine, should not enter the facility. Facilities should screen all who enter for these visitation exclusions.

This DAL supersedes and replaces any and all previously issued guidance regarding nursing home visitation.

NYSOH: 2022 Enrollment Period is Now Open

The NY State of Health (NYSOH), New York State’s Health Plan Marketplace, announced the beginning of the 2022 Open Enrollment Period for consumers to enroll in, or renew coverage under a Qualified Health Plan (QHP).

Starting on November 16, 2021, new enrollees can apply for coverage to start January 1, 2022, while current enrollees may begin renewing coverage as well. Open enrollment for QHPs will continue through January 31, 2022, while enrollment in the Essential Plan, Medicaid and Child Health Plus is open all year. The Marketplace offers a choice of health plans across all Marketplace programs in every county of the state, along with free in-person assistance options to help consumers choose the best insurance coverage.

Additionally, new to Open Enrollment this year is the introduction of the State’s Care at Home program, a pilot program in Nassau, Suffolk and Westchester counties that connects New Yorkers with trusted home care providers from licensed home care services agencies (LHCSAs), making it easier for them to purchase personal care services for themselves and their families.

DOH Issues Religious Exemption Update on Vaccine Mandate for HCP

The DOH issued a DAL (Religious Exemption Update) to inform covered entities that beginning November 22, 2021, all covered entities must ensure that covered “personnel” under the DOH’s August 26th emergency regulation – Prevention of COVID-19 Transmission by Covered Entities who were previously granted religious exemptions have documentation of either a first dose COVID-19 vaccination or a valid medical exemption. The DAL was sent to the following provider types, with the applicable DAL #s:

  • Hospitals and D&TCs – DHDTC 21-11
  • Nursing Home Operators – NH 21-25
  • Home and Community Based Services Providers – DHCBS 21-13
  • Adult Care Facilities – DAL 21-32

Managed Care Policy and Planning Meeting

On Thursday, November 18, the Department of Health held the Managed Care Policy and Planning Meeting with the State’s Medicaid Managed Care plans. Highlights from the meeting include:

  • Mainstream Enrollment: Total mainstream enrollment through October was 5,202,613, an increase from September’s enrollment of 5,180,566 enrollees. HARP enrollment increased by 473 enrollees from September to October for a total enrollment of 161,035. HIV SNP enrollment decreased by 5 enrollees from September to October.
  • MLTC Enrollment Update: Enrollment in MLTC Partial Cap is currently 249,287, an increase of 4,334 members from September. MAP enrollment increased to 30,407 for October. FIDA IDD enrollment is 1,720. MA enrollment continued its downward trend to 2,947 members in October and all members will be disenrolled by December 31. PACE enrollment experienced an increase of 209 members from September to October for total enrollment of 5,522. Since January, enrollment across all MLTC programs has increased by 10,558.
  • MLTC Partial Plan NH Benefit Limitation: The next batch disenrollment of MLTC partial plan members in a long-term nursing home stay for more than 3 months is scheduled for February 1. A plan survey, the first step in the batch disenrollment process, was sent to MLTC partial plans on November 19 and is due back to DOH on December 3.
  • MLTC Involuntary Disenrollment: Two additional involuntary disenrollment processes are scheduled to be prospectively implemented beginning January 1, 2022—1) enrollee or family engages in behavior that seriously impairs the ability to furnish services and 2) enrollee has been absent from the plan’s service area for more than 30 or 90 consecutive days. These involuntary disenrollments were halted during the COVID Public Health Emergency.
  • HCBS Self-Assessments for SADC: All SADCs are required to comply with the CMS HCBS final rule. DOH will be distributing Policy Guidance and Fact Sheet, Site Self-assessment Guiding Questions for MLTC Plan Assessors, and a Site Self-Assessment Survey Tool to MLTC plans. MLTC plans will be required to provide aggregate and site-specific reports to DOH. A training webinar will be scheduled for early December.
  • Transition of Community Health Assessments (CHAs) to the Independent Assessor (IA): On September 8, DOH published the final regulatory changes to permit the transition of community health assessments to the Independent Assessor (IA). The regulations have an effective date of November 8. DOH stated that the transition of CHAs to the IA will not begin before March 2022. DOH is interested in receiving feedback on coordinating the transition of the CHAs to the IA from plans.
  • Home and Community Based Services Spending Plan: The HCBS Spending Plan included a proposal to provide additional funding for the Long-Term Care Workforce and Value-Based Payment Readiness Implementation. DOH will use a directed payment to distribute funding through MLTC plans (excluding PACE plans). DOH submitted the directed payment proposal to CMS on November 15. Initial payments are expected to be made to MLTC plans in the 1st Quarter of 2022. DOH will identify the amount of funding to be provided to each LHCSA to which funding is targeted. MLTC plans will receive an administrative fee for administering these payments. DOH is still reviewing whether funding distribution will require contract amendments between MLTC plans and LHCSAs, MLTC financial reporting requirements, and what, if any, oversight responsibilities will fall to MLTC plans.

PHHPC Meetings

On Thursday, November 18th, the Public Health and Health Planning Council (PHHPC) held a special meeting along with meetings of the Committee on Codes, Rules and Legislation (CCRL) and the Committee on Establishment and Project Review (CEPR). The purpose of the special meeting of the full Council was to consider a series of regulatory proposals to be renewed under emergency adoption as well as for information as the Department of Health will begin the process for permanent adoption. The following regulatory proposals were considered:

For emergency adoption (renewal) and for information:

Investigation of Communicable Disease; Isolation and Quarantine – This regulation authorizes the State and local departments of health to take specific actions to control the spread of communicable diseases, including COVID-19. Such actions include the investigation of a “case” or “suspected case,” outbreak, or unusual disease, along with responsive actions during a disease outbreak, and to issue orders for isolation and quarantine. This rule also requires clinical laboratories to immediately report positive cases via the Electronic Clinical Laboratory Reporting System (ECLRS), and mandates reporting by hospitals of syndromic surveillance data during an outbreak.

Face Coverings for COVID-19 Prevention – This regulation requires individuals ages two and up to wear a face covering/mask under certain circumstances and in certain settings, as determined by the State’s Health Commissioner, on the basis of COVID-19 incidence and prevalence, as well as any other public health and/or clinical risk factors related to COVID-19 disease spread.

Personal Caregiving and Compassionate Caregiving Visitors in Nursing Homes and Adult Care Facilities – This regulation requires nursing homes and ACFs to develop policies and procedures relating to compassionate caregiver visitation and personal caregiver visitation, to include the frequency and duration of visits and any limitations on the number of visitors, that are consistent with these regulations and the governing statutes under current law, as enacted by Chapter 108 of the Laws of 2021.

Prevention of COVID-19 Transmission by Covered Entities – This regulation requires those health care facilities considered as “covered entities,” (i.e. hospitals, nursing homes, ACFs, HCBS providers) to have all covered personnel be fully vaccinated against COVID-19, absent the receipt of a valid medical exemption certified by a licensed physician, physician assistant (PA), or certified nurse practitioner, in accordance with generally accepted medical standards. This version of the emergency rule includes revisions to also permit a medical exemption certified by a licensed PA, and removes the original September 27, and October 7 deadlines as these have already passed.

For emergency adoption (renewal):

COVID-19 Reporting in Schools – This regulation requires all public and non-public schools to submit daily reports of COVID-19 testing as well as all positive results reported to the school (regardless of the manner of such report), including reports to the school, among students, staff, and/or volunteers.

Both the CCRL and the full Council voted unanimously to adopt the proposed emergency regulations.

For information only (no actions taken):

Abortion Services: This regulation includes amendments that align regulatory language with § 2599-bb of NYS Public Health Law and the Reproductive Health Act of 2019, to better align the regulations with current clinical standards for providing abortion care. This regulation also removes the requirement that at least one physician of the D&TC must have admitting privileges to a hospital.

The agendas and meeting materials from this meeting are available here, and a recorded video of this meeting can be accessed by clicking here.

SUNY and CUNY – Nurses For Our Future Scholarship

Governor Hochul announced the launch of a scholarship program within the State University of New York (SUNY) and City University of New York (CUNY) systems called “Nurses For Our Future Scholarship” that will cover tuition for 1,000 new healthcare workers to gain the education needed to achieve the registered nurse (RN) status through the SUNY and CUNY systems. The program is put forth to assist in addressing a statewide shortage of health care professionals in hospitals, nursing homes, and homecare across the State.

$1.5 B in Funding for Developmental Disabled Care Professionals

Governor Hochul recently announced that the NYS Office for People with Developmental Disabilities (OPWDD) will provide over $1.5 billion in one-time American Rescue Plan Act (ARPA) funding to support recruitment efforts, retention incentives and vaccination bonuses for direct support professionals who provide support for people with developmental disabilities. The OPWDD plans to invest the one-time ARPA funding in workforce improvements and incentives including:

  • A “Heroes Fund” to provide incentive payments to those DSPs who worked during the pandemic with additional payments for those who received the COVID vaccine.
  • Retention and longevity bonuses.
  • Long-term recruitment and retention strategies which will be developed and tested with funding for projects that address the long-term stability of the workforce. Funding will be made available to incentivize credentialing and other strategies that build skills and competency of DSP workforce and front-line supervisors.

For additional information on the OPWDD’s targeted plan to advance home and community-based services, click here.

Regulatory Update

Department of Health (“DOH”) –

Nursing Home Minimum Direct Resident Care Spending – Pursuant to Chapter 57 of the Laws of 2021, the DOH has issued proposed regulations requiring that, beginning January 1, 2022, nursing homes spend a minimum of 70 percent of their operating revenue on direct resident care, with 40 percent of such revenue focused on paying for resident-facing staffing. A reduction of 15 percent will be applied to the amounts spent on resident-facing staffing and direct resident care that are contracted out by a facility for services provided by a staffing agency.

The regulations require that any facility that fails to meet the minimum direct resident care spending requirements, must remit the difference to the DOH, or be subject to penalties for failure to do so. In addition, any revenues earned by a facility in excess of five percent over the total operating and non-operating expenses, as recorded on the facility’s RHCF cost report, must be remitted to the Department. The regulations allows a facility to apply to the Commissioner of DOH for a waiver of applicability on the basis of unexpected or exceptional circumstances that prevented compliance.

The regulation is being developed by the Department pursuant to § 2828 of the Public Health Law.

This proposed regulation is open to a 60-day public comment period, beginning on November 18, 2021.

Minimum Staffing Requirements for Nursing Homes – This proposed regulation implements minimum daily staffing requirements for all nursing homes pursuant to § 2895-b of PHL. Beginning January 1, 2022, a facility must maintain daily average staffing hours equal to 3.5 hours of care per resident per day by a certified nurse aide (CNA), registered professional nurse (RN), licensed practical nurse (LPN), or nurse aide (NA). Of the required 3.5 hours, no less than 2.2 hours of care per resident per day must be provided by a CNA or a NA (until 1/1/23), and no less than 1.1 hours of care per resident per day must be provided by a RN or LPN.

Compliance with the minimum nursing staff requirements will be measured quarterly by the DOH through assessments using the most recent data available from the federal Centers for Medicare and Medicaid Services (“CMS”) payroll based journal and the facility’s average daily census.

Any facility found to be non-compliant with the requirements of this regulation may be subject to penalties of up to $2,000 per day for each day in a quarter that a facility fails to comply with the minimum nursing staff requirements.

The proposed regulation is open to a 60-day public comment period, beginning on November 18, 2021.

Article 28 Nursing Homes; Establishment; Notice and Character and Competence Requirements – This proposed regulation implements revisions to the Public Health Law (PHL) § 2801-a pursuant to Chapters 102 and 141 of the Laws of 2021, and outlines the following changes.

  1. Requires that notice, as well as an opportunity to submit comment, be provided to residents and staff, the public, the state long term care ombudsman, and other stakeholders – by both the applicant and the DOH upon the acknowledgement of a nursing home CON establishment application (including a change of ownership), and again when the application is scheduled for consideration by the PHHPC.
  2. Establishes that the “character, competence, and standing in the community” review standard be comparable for all applicants, and includes language to subject all members of a limited liability company applicant be subject to such review standards.
  3. When approving an applicant, the PHHPC must make a determination that a “substantially consistent” or a “consistently high level” of care has been rendered by the applicant at other facilities operated by the applicant. In making such a determination the following factors should be considered: specific information and the gravity of any violation, along with the manner in which the applicant/operator exercised supervisory responsibility over the facility operation, and all remedial action taken (if any) upon the discovery of a violation.
  4. Codifies standards of review for nursing home character and competence, using certain quality of care metrics when evaluating and making a determination that a consistently high level of care has or has not been rendered.

The proposed regulation is open to a 60-day public comment period, beginning on November 18, 2021.

Office for People with Developmental Disabilities (OPWDD) –

Community Transition Services – The OPWDD has issued a notice of proposed regulations that make use of gender neutral terminology and make updates to documentation terminology. The regulation also allows for an increase in the cap on community transition services reimbursement up to the federally-approved cap of $5,000, from the current cap of $3,000. The proposed rule is open to a 60 day public comment period beginning on the day of its publication in the State Register.

Legislative Update

Bills that have passed both houses of the Legislature will be delivered to the Governor in “batches” over the next several months. Once a bill has been delivered to the Governor, she has 10 days (excluding Sundays) to either sign the bill into law or veto the bill.

The following bills were recently acted upon by the Governor:

A7123 (Woerner) / S6485-A (Breslin) – Signed Chapter 619 – This Bill extends the provisions of the health savings account pilot program until December 31, 2024 (3 years).

Coming up

Thursday, December 9, 2021 @ 10:15 a.m. – Public Health and Health Planning Council (PHHPC) Full Council Meeting – Webcast

Tuesday, December 14, 2021 @ 10:15 a.m. – Early Intervention Coordinating Council Meeting – Webcast

Quick Links

NYS Department of Health — NYS DOH – Quick LinksMeetings, Hearings & Special Events — Medicaid Redesign Team — Senate Health Committee Website — Assembly Health Committee Updates — NYS Division of Budget

Plugged in to Health at Hinman Straub is prepared by Hinman Straub P.C. and is intended to keep our clients informed about health news and Legislative and regulatory developments that may affect or otherwise be of interest to them. The comments contained herein do not constitute legal opinion and should not be regarded as a substitute for legal advice.