‘This Battle Is Far From Over’: Federal Court Dismisses NAHC’s Lawsuit Against CMS
Home Health Care News / By Joyce Famakinwa
Last summer, the National Association for Home Care & Hospice (NAHC) made waves when it filed a lawsuit against the Centers for Medicare & Medicaid Services (CMS) and the U.S. Department of Health and Human Services (HHS) over Medicare home health payment calculations.
Last week, a federal court in Washington D.C., dismissed NAHC’s lawsuit against CMS and HHS.
The lawsuit claimed that CMS and HHS utilized an “invalid” methodology to decide payment, and that recent home health payment cuts were unlawful.
“The primary claim in our lawsuit is that the methodology violated the plain language of the Medicare law,” NAHC wrote in its latest report.
CMS implemented a 3.925% rate reduction for 2023, and a 2.89% one for 2024.
On April 26, the U.S. District Court for the District of Columbia ruled that NAHC skipped an agency review process prior to suing.
“The Court ruling addresses a combination of the NAHC arguments and the defenses presented by the U.S. Department of Justice on behalf of CMS,” NAHC wrote. “DOJ argued that the Court did not have the power to hear any challenges to the PDGM budget neutrality adjustment methodology, that NAHC failed to exhaust all administrative appeal steps, and that the challenged methodology was in compliance with the law.”
Still, NAHC noted that the Court ruled in its favor on something it considers a crucial element of the case.
“[The court rejected] DOJ’s argument that all judicial review was precluded on anything related to the PDGM system,” NAHC wrote. “The Court specifically held that NAHC could challenge the budget neutrality adjustment methodology once administrative remedies are exhausted. Of further note, the Court did not rule on or evaluate the merits of the NAHC claim that the methodology violated Medicare law.”
Last year, the Biden administration asked a federal judge to throw out NAHC’s lawsuit against CMS and HHS.
Looking ahead, NAHC is considering its next move. One of the things the organization is thinking about is appealing the court’s ruling on exhaustion of administrative appeals.
Pursuing a request for expedited judicial review with CMS is also on the table. If a judicial review is expedited, NAHC plans to refine its lawsuit.
“The Court did not rule on the merits of NAHC’s claims that it had violated Medicare laws,” NAHC wrote. “As such, a lawsuit can be pursued once the administrative steps are completed.”
Ultimately, NAHC President William A. Dombi believes that the lawsuit dismissal is a stumbling block, but one that the organization will prevail over.
“We are disappointed with the court’s ruling. However, it is a minor setback that we can readily overcome,” Dombi said in the report. “Often justice delayed is justice denied. Here, we will have our day in court. This battle is far from over.”
In addition to his role as president, Dombi also served as legal counsel to NAHC. |
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Investigation Finds Home Care Agency Failed to Protect Visiting Nurse Who Died in Willimantic
NBC Connecticut / By Angela Fortuna
A federal investigation following the death of a Connecticut visiting nurse found that the home care agency she worked for did not provide enough safeguards to protect her.
The Department of Labor's Occupational Safety and Health Administration found that Elara Caring, one of the nation's largest home-based care providers, failed to protect Joyce Grayson, who was killed on Oct. 28, 2023.
Michael Reese, the man accused of killing Grayson, has been charged with murder. Grayson, a visiting nurse, had an appointment with Reese at his residence, a halfway house for sex offenders in Willimantic.
Around 2 p.m., Willimantic police received a call asking them to check on Grayson after she missed several patient appointments. The caller said Reese was Grayson’s first appointment of the day and there had been no contact with her since early that morning.
Police eventually found Grayson's body in the padlocked basement of the Chapman Street home, and they found her cell phone in a bucket of liquid in the bathtub, according to the arrest warrant.
Grayson died of compression of the neck and her death was ruled a homicide, according to authorities.
Federal OSHA officials found that on the day of Grayson's death, and at times prior, Elara Caring "exposed home healthcare employees to workplace violence from patients who exhibited aggressive behavior and were known to pose a risk to others."
Jordan Health Care Inc. and New England Home Care Inc., who both did business as Elara Caring, have been cited for willful violation under the agency's general duty clause, officials said.
Feds cited the home care agency for "not developing and implementing adequate measures to protect employees from the ongoing serious hazard of workplace violence." Elara Caring was also cited for not providing work-related injury and illness records to OSHA within four business hours, as required by law.
The home care agency will have to pay over $163,000 in proposed penalties…
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EEOC Releases Final Guidance on Workplace Harassment
SESCO Management
The U.S. Equal Employment Opportunity Commission (“EEOC”) has released its Enforcement Guidance on Harassment in the Workplace (the “Final Guidance”).
Guidance Clarifies the Scope of Sex Discrimination and Harassment.
The Final Guidance:
- Clarifies that Title VII’s protections extend to LGBTQ employees. Specifically, it clarifies that workplace harassment includes “misgendering” employees or denying access to bathroom facilities that align with their gender identity.
- Reminds employers that discrimination and harassment based on “sex” includes harassment based on pregnancy, childbirth, and “related medical conditions,” which include employees’ decisions related to contraception and abortion.
Guidance Addresses Harassment in a Remote Work Environment.
The Final Guidance:
- Clarifies that conduct in a virtual work environment, including electronic communications using private phones, computers, or social media accounts can contribute to a hostile work environment if they impact the workplace. The EEOC states that, for example, an employee who is the subject of ethnic epithets posted on a coworker’s personal social media page could be subjected to a hostile work environment if the employee is directly exposed to the post or other coworkers see the post and discuss it at work.
- Clarifies that conduct occurring outside the workplace, including on social media, which does not target the employer or its employees and is not brought into the workplace generally will not contribute to a hostile work environment.
Guidance Updates Anti-Harassment Policy Requirements.
The Final Guidance states that a harassment and discrimination policy should be widely disseminated, comprehensible to workers, and include:
- A definition of the prohibited conduct;
- A requirement that supervisors report harassment;
- Multiple avenues for reporting harassment;
- A statement that clearly identifies accessible points of contact for reporting purposes, including contact information; and
- An explanation of the complaint process, including adequate anti-retaliation and confidentiality protections, and prompt and effective investigations and corrective action.
The Final Guidance also includes a “non-exhaustive” list of the elements of an effective training: an overview of the employer’s anti-harassment policy and complaint process; examples of prohibited harassment; information on rights for those who witness, experience, or report harassment; and clear instructions for supervisors and managers on how to prevent, identify, stop, report, and correct harassment.
If you are not a retainer client, [of SESCO Management] contact us to learn about our services by calling 423-764-4127 or click here. |
Noncompete Ban Could Make ‘No-Poach’ Agreements Harder to Enforce: Polsinelli
McKnights Home Care / By Adam Healy
The Federal Trade Commission’s ban on noncompete agreements threatens to undermine common tactics used by home care agencies to prevent client poaching, experts at law firm Polsinelli warned during a recent webinar.
The rule does not explicitly forbid documents such as nondisclosure agreements (NDAs) and no-poach agreements, which are often used by home care and hospice providers. However, FTC included a “functional equivalence” test to measure whether such provisions would in practice act as a noncompete, Polsinelli’s attorneys noted. As a result, these kinds of contractual provisions could be undone if they are applied too broadly.
“If you have an NDA that’s so broad that it would be seen as the functional equivalent of a non compete, you may have trouble,” Polsinelli attorney Scott Gilbert said during the webinar Tuesday. “If you have a super-broad NDA, it may not be enforceable.”
Furthermore, the FTC could throw out any contract provision that applies to workers after their employment has ended, explained Polsinelli shareholder Emma Scheuring. This includes no-poach clauses that prohibit caregivers from being hired directly by their patients after their employment by a home care agency ends.
“If you’re asking your caregivers not to go work for their clients — your clients — after they stop working for you, that’s a noncompete under the rule,” Scheuring said. “Anything that says, ‘Employee, once you leave working for me, you can’t go work for XYZ,’ that’s going to be problematic under the rule.”
Other types of contractual obligations, including direct-hire clauses, were not addressed directly in the FTC’s rulemaking. But experts have previously stated that the use of these kinds of provisions may also be limited once the rule goes into effect.
Broad application
Against many providers’ wishes, FTC did not grant a blanket exemption for healthcare businesses. This means that for-profit home care, home health and hospice providers are subject to FTC’s ban, Polsinelli’s experts said.
And while the FTC generally does not have jurisdiction over nonprofit entities, the agency indicated in the rule’s comment section that it intends to look more closely at whether some businesses actually qualify as nonprofits. If “presented with an appropriate test case,” the agency may try to assert its jurisdiction on a nonprofit engaged in “relatively commercial activities,” according to law firm JD Supra.
Meanwhile, the Internal Revenue Service also recently suggested that it would be investigating whether some entities fit their nonprofit status, according to Gilbert.
“It wouldn’t surprise us at all to see collaboration between the FTC and the IRS in evaluating [whether a business is truly not-for-profit],” Gilbert said…
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Home Health: A Solution to Skyrocketing Healthcare Costs
MedCity News / By Andrew Molosky
A great deal of healthcare can take place in the home, leaving valuable bandwidth available for specialized facilities when they are needed.
A great deal of healthcare can take place in the home, leaving valuable bandwidth available for specialized facilities when they are needed.
As the 2024 presidential election draws nearer, nearly 75% of Americans report healthcare costs as a primary financial worry according to a new study from KFF. Americans have every reason to feel this way: over the last five decades per capita healthcare spending has increased from $353 in 1970 ($2,072 adjusted for inflation) to $13,493 today. But care quality has not increased by the same rate – rather, patients are simply paying more today for the same “one-size-fits-all” treatments.
Rising costs and poor quality, however, are not the result of this administration or that one. They are a function of deeper problems endemic to the American healthcare industry itself.
Added attention to the cost of care gives healthcare stakeholders the opportunity to step back and evaluate American healthcare as a whole. It is incumbent on us to think through system level changes and reshape the future of care delivery in this country.
Munck Wilson Mandala Partner Greg Howison shared his perspective on some of the legal ramifications around AI, IP, connected devices and the data they generate, in response to emailed questions.
Fortunately, home-based healthcare paradigms like hospice, that have long been recognized as the least institutionalized and profit-driven segments of the healthcare industry, offer a model for a return to healthcare sanity.
American healthcare is beset by skyrocketing costs that force many patients to choose between their health and their financial stability. The statistics are staggering: Healthcare is the primary reason that Americans file for bankruptcy. Over half of Americans––57%––report having had some medical debt over the last five years.
What’s more, the United States spends much more on healthcare per person than peer nations; some studies suggest we spend twice as much. As the most prosperous, innovative country on Earth, our healthcare system should be the best. Instead, it’s one of the worst amongst wealthy countries…
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