Staffing Mandate Lawsuit: DOJ Files Counter Argument to Plaintiffs’ Summary Judgment Motion
On November 15, the U.S. Department of Justice, on behalf of the U.S. Department of Health and Human Services and the Centers for Medicare and Medicaid Services (CMS), filed a combined Cross-Motion for Summary Judgment and Opposition to Plaintiffs’ Motion for Summary Judgment to oppose the motion for summary judgment by LeadingAge and fellow plaintiffs in the lawsuit challenging the CMS nursing staffing standard and advancing the Government’s own cross-motion for summary judgment. More information and a link to the Department’s filing is available here; follow all developments in the Nursing Home Staffing Mandates serial post.
Texas Court Strikes Down Department of Labor Overtime Regulation
On November 15, Judge Sean Brown, of the U.S. District Court for the Eastern District of Texas, struck down the U.S. Department of Labor’s final overtime rule, Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees, which the Department published in April. In November 2023, LeadingAge submitted comments to the Department expressing concern about the impact of the aggregate two-fold increases to the minimum salary level and urging the Department to advance a smaller increase, but the final rule did not waver from the proposal.
A number of business groups, as well as the state of Texas, challenged the legality of the final rule, which concerns the so-called “white collar” overtime exemptions under the federal Fair Labor Standards Act (FLSA). It established a two-step increase in the annual salary that must be paid for executive, administrative and professional employees to be classified as exempt from overtime; the first increase took effect July 1 (rising to $43,888 per year) and the second was scheduled to take effect January 1 (rising to $58,656). Judge Brown’s decision and order vacates the rule, concluding that the Department of Labor had exceeded its statutory authority under the FLSA. LeadingAge will provide additional analysis in the coming days.
Kennedy Tapped for HHS Secretary and Dr. Oz Nominated to Lead CMS
On November 14, President-elect Donald Trump said he has selected Robert F. Kennedy Jr. to be Secretary of the Department of Health and Human Services.
“For too long, Americans have been crushed by the industrial food complex and drug companies who have engaged in deception, misinformation, and disinformation when it comes to Public Health,” President-elect Trump posted on X.
“The Safety and Health of all Americans is the most important role of any Administration, and HHS will play a big role in helping ensure that everybody will be protected from harmful chemicals, pollutants, pesticides, pharmaceutical products, and food additives that have contributed to the overwhelming Health Crisis in this Country.”
On November 19, President-elect Donald Trump said he nominates Dr. Mehmet Oz to lead the Centers for Medicare & Medicaid Services (CMS). “He is an eminent physician, heart surgeon, inventor, and world-class communicator who has been at the forefront of healthy living for decades,” President-elect Trump said in a statement.
CMS Releases Significant Updates to Long-Term Care Surveyor Guidance
The Centers for Medicare & Medicaid Services (CMS) released an update to surveyor guidance on November 18 that provides greater insight and direction on several areas of the Requirements of Participation. The identified areas are unsurprising, as they represent areas of significant focus from CMS in recent years such as unnecessary psychotropic medications, erroneous MDS coding, transfer and discharge rights and procedures, and infection control. While requirements have not changed, the details in the guidance will likely result in increased citations as surveyors become more familiar with CMS’s expectations for compliance. The guidance and associated surveyor activities will be implemented in February 2025. LeadingAge is reviewing the guidance and will provide more detailed analysis in the coming days.
Appeals Processes Relating to Hospital Observation Status: Awaiting Additional CMS Guidance
LeadingAge is continuing to monitor for further guidance from CMS concerning implementation of the Final Rule establishing appeals processes for certain Medicare beneficiaries who are initially admitted as hospital inpatients but are subsequently reclassified as outpatients receiving observation services during their hospital stay.
The purpose of the rule is for CMS to comply with a court order issued in the case Alexander v. Azar, a nationwide class action case that established the right of patients to appeal such changes of status. As required by the court order, a retroactive right of appeal will be available to Medicare beneficiaries meeting certain criteria, and both “expedited”, and “standard” appeals processes will apply prospectively. CMS anticipates these processes will be available in early 2025.
This LeadingAge article provides analysis of the final rule, and we will work with CMS to gather additional information about how the processes will work and to identify and address practical issues that arise for providers.
CMS Directs Surveyors to Curb Hospice Fraud
The Center for Clinical Standards and Quality (CCSQ) released a memo for survey agencies, Ensuring Consistency in the Hospice Survey Process to Identify Quality of Care Concerns and Potential Fraud Referrals. The memorandum is intended to reinforce existing tools to identify when a hospice provider’s non-compliance with the Conditions of Participation (CoPs) puts the health and well-being of patients at risk and could be an indicator of the need for a fraud referral. CCSQ notes while the purpose of survey’s is to determine compliance with CoPs, there are several elements of the survey process that can uncover concerns that may necessitate a referral to CMS for potential fraud. CCSQ specifically outlines elements of the survey process that need to be consistently performed to safeguard hospice patients and ensure the integrity of the program including:
- Observation of requirements like 24/7 access to services and provision of all levels of care
- Confidential interview practices including the use of translators for non-English speakers
- Record review for complaints, individualized care plans, IDG minutes, and election statements
- Hospice administrative oversight with regards to Quality Assessment and Performance Improvement (QAPI) programs, functioning governing bodies, CMS forms, and medical director roles and responsibilities
CMS also discusses the role of these elements in abbreviated surveys such as Changes of Ownership (CHOWs) and the enforcement actions available to surveyors for hospices that do not meet CoPs. CMS further outlines the role of surveyor training and skills review. Finally, CMS notes the way in which independent state licensure authority can similarly stop and/or mitigate potential fraudulent practices and examples of licensure processes to prevent abuse including Certificate of Need. With this increased focus on fraud members are encouraged to review the LeadingAge webinar reviewing the survey process which was updated in 2023.
CMS Releases Hospice Preview Reports for the February 2025 Refresh
Medicare hospice providers can now access the latest Provider Preview Reports via the Certification and Survey Provider Enhanced Reports (CASPER) application. Once released in CASPER, providers will have 30 days during which to review their quality measure results, the reports will continue to be available for 60 days. The preview period for the latest Provider Preview Report lasts from November 13, 2024 to December 13, 2024 and includes updates to the Hospice Item Set measures, Hospice CAHPS Survey measures and the Hospice CAHPS Star Rating. CMS encourages providers to download and save their Hospice Provider Preview Reports for future reference, as they will no longer be available in CASPER after this 60-day period. Providers can review the hospice quality reporting program tip sheet here for more information on public reporting.
Weekly Recaps: November 20, 2024
Affordable Housing Weekly Recap. Here is your Affordable Housing Weekly Recap.
Home Health Weekly Recap. Here is your Home Health Weekly Recap.
Hospice Weekly Recap. Here is your Hospice Weekly Recap.
Life Plan Community Weekly Recap. Here is your LPC Weekly Recap.
Medicaid, HCBS, and PACE Weekly Recap. Here is your Medicaid, HCBS, and PACE Weekly Recap.
Nursing Home Weekly Recap. Here is your Nursing Home Weekly Recap.
Workforce Weekly Recap. Here is your Workforce Weekly Recap.
