In The News

Overtime Rule Changes

SESCO Management Consultants

The U.S. Department of Labor (DOL) has proposed that the White-Collar exemption salary threshold of $35,568 be increased to $55,068 per year. ***State law may require a salary threshold that exceeds the proposed federal salary threshold. ***

The DOL also is proposing automatic increases every three years to the overtime threshold.

To be exempt from overtime under the Fair Labor Standards Act’s "White Collar" Executive, Administrative and Professional exemptions, employees must be paid a salary of at least the threshold amount and meet certain duties tests. If they are paid less or do not meet the tests, they must be paid 1 1/2 times their regular hourly rate for hours worked in excess of 40 in a workweek.

The new rule is subject to a period of public comment and won’t take effect for several months.

As SESCO’s history is rooted in Wage and Hour compliance and representation of clients before the DOL, we recommend that the following steps be implemented now so as to prepare for these significant changes:

  • Review your current salary-exempt positions and simply identify those who make less than $55,068 per year.
  • Request/require these positions to begin to maintain an accurate record of time, if not already, to determine actual hours worked. Use a reason such as benefits, etc. – do not reference DOL.
  • Determine whether currently classified salary-exempt employees who make less than $55,068 work in excess of 40 hours per week.
  • If overtime is worked, determine if hours of work can be reduced to 40 or less so as to avoid an increase in the salary or transitioning the pay plan to a nonexempt plan with overtime.
  • If, in fact, the position is required to work over 40 on a regular basis, then you will need to determine whether or not you wish to increase the salary in one fell swoop to the minimum requirement, $55,068.
  • If this increase is not practical, you will need to determine whether or not you wish to implement a nonexempt pay plan which includes an hourly rate with time and one-half over 40 or SESCO’s recommended Fluctuating Workweek Method of Payment which is a guaranteed salary pay plan with half-time for hours worked in excess of 40 hours per week. The fluctuating workweek is a very viable pay plan for both employer and employee and will be the least disruptive to both parties. However, we strongly recommend that you contact SESCO before implementing such a program to not only ensure compliance with the DOL regulations, but also ensure that it is properly implemented and communicated to staff so that there is no confusion.

Contact your HR and employment law partner with any questions or concerns. For assistance, contact us at 423-764-4127 or by email at [email protected]

 

Demystifying Narcotics for Pain at End of Life

Barbara Karnes, RN

Pain at end of life is so misunderstood. It seems like the letters I receive from family members saying “Hospice gave my mom morphine and they killed her” are increasing instead of decreasing.

SO here are my thoughts on how to help our families:  education, education, education. Before beginning use of morphine or fentanyl sit down with primary caregivers and begin their education.

I wrote the booklet Pain At End of Life to address the misunderstandings and fear that surrounds narcotics at the end of life. Pain management for someone at the end of life is different from pain management for someone who is going to get better. Families don’t know this and often neither do health care providers.

It is not enough to give the booklet to the family and say “read this.” Half the time they don’t, and the other half they will have questions as they read it, but forget to ask when you are with them. You want a face-to-face, "let’s sit down and read this booklet and talk about it together" kind of teaching.

When charting, be sure to include that the reading was done and questions were asked and answered.  It’s a “cover your tush” kind of charting, BUT it is also good family care. You are educating, and by educating you are reducing the fear, anxiety, and misinformation that are so often present.

Not everyone who is dying has pain. Disease causes pain. If pain is not present, a narcotic is not appropriate (except a tiny bit can ease labored breathing if it is present ——- sometimes).

So often we jump into morphine or fentanyl use when a lesser drug will do the job. Occasionally Ibuprofen can make a person more comfortable. Ativan or Haldol can also be beneficial.

Pain management needs to be individualized. There is no go-to end of life drug for everything we don’t have time to manage. There should be no standardized dosage or use.

INDIVIDUALIZED! The “take two aspirins and the headache will go away” format doesn’t apply to end of life pain management. It takes time and expertise. Narcotics are not a one-size-fits-all kind of drug. It is also a last resort kind of drug for pain.

 

The Geriatrics and Extended Care Website: A One-Stop Resource

The Department of Veterans Affairs (VA) has a website designed for older Veterans and those with extended care needs as well as their caregivers and families.

The website’s main topics include:

There are many helpful videos, handouts, tools, and links, including one to find a social worker in your area. Bookmark this VA website as a favorite and forward this email to share this resource with other Veterans and caregivers.

 

Providers Take Aim at Proposed Home Health Medicare Cuts, Hospice SFP in CMS Comments

McKnight’s Home Care | By Liza Berger
 
Presenting detailed arguments about the impact of a 2.2% Medicare payment cut on the home health industry, providers asked the Centers for Medicare & Medicaid Services to not implement temporary or permanent behavioral adjustments next year.
 
“We strongly recommend that CMS … withhold any such adjustments in 2024 to provide the opportunity for a full and deep review of the direction of the home health benefit, its impact on access to care and options to preserve a longstanding benefit …,” the National Association for Home Care & Hospice said in its 36 pages of comments to CMS.
 
All the major home care associations and many individual providers and supporting firms weighed in on the controversial proposed rule. Comments were due to the agency on Tuesday.
 
At issue is the total 2.2% Medicare payment reduction proposed for 2024. This includes a 5.653% permanent cut to Medicare’s home health agency rates. The latter follows a 3.925% permanent reduction put in place for 2023.
 
Providers argued that this loss in Medicare funds hurts access to home health. One reason: Agencies must reject cases due to staffing shortages, and the industry already is struggling with this problem thanks to the COVID-19 pandemic. LeadingAge in its comments cited a CarePort survey that found that there was a 40% increase in home health agency referral rejection rates between its 2022 and 2023 reports. And Homecare Homebase reported that the percentage of referral rejections due to the staffing shortage rose from 3.8% at the beginning of 2020 (when the Patient-Driven Groupings Model payment system was implemented) to 12.1% at the beginning of 2023.
 
“The staffing crisis is a perfect storm — the competition for staff has never been stiffer due to the pandemic,” LeadingAge said in its comments. “Home health agencies had difficulty competing for staff with hospitals, insurance companies and other opportunities prior to the pandemic; that competition is even fiercer now. The continued downward pressure on payment could not come at a worse moment — the result is going to be decreased access to care, especially for those who need it most.”
 
The Partnership for Quality Home Healthcare, which represents home health agencies, echoed these concerns in its comments.
 
“CMS must assess the on-the-ground realities for patients, clinicians and HHAs and finalize a 2024 HH PPS that allows the sector to stabilize, rather than perpetuating a downward spiral,” the Partnership said. “Finalizing the rule as proposed will continue the demise of the home health benefit, to the detriment of beneficiaries, particularly the most vulnerable.”
 
Rate cuts over the years have resulted in home health agency closures, reduced service areas, reduced admissions and reduced scope of services, NAHC said. Home health agencies with current negative Medicare margins would face significant financial difficulties in absorbing the proposed additional 5.653% rate cut for 2024. Some 52.7% of freestanding home health agencies would be “underwater” with overall margins below 0% assuming no change in costs compared to 2022, according to NAHC.
 
Providers also pointed out that Medicare helps to subsidize programs that don’t pay as handsomely, namely Medicaid and Medicare Advantage.
 
“Changing payment rates in traditional Medicare has a ripple effect on the entire patient population of an HHA,” NAHC said. “That is particularly the case when the other payers are highly unlikely to step up and improve their payment rates as we have here in home health with Medicare Advantage and Medicaid, both having rate setting power that is sanctioned by CMS.”

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Why Accurate Cost Reporting Could Be Key To Higher Rates In Home Health Care

Home Health Care News | By Patrick Filbin
 
Regardless of what the U.S. Centers for Medicare & Medicaid Services (CMS) decides to do with its home health final payment rule, industry experts believe providers need to drastically improve their cost reporting data.
 
“CMS seems to think there are too many of us and we’re making too much money,” Robert Markette, an attorney with the law firm Hall, Render, Killian, Heath & Lyman, said during an Axxess panel. “If you look at the data they’re relying upon, we’ve somewhat done that to ourselves with cost reporting. The reason they think we have a 45% profit margin, which is essentially what they’re saying, is because our cost report data is off.”
 
Prior to the implementation of PPS at the turn of the century, home health providers were accustomed to spending months on cost reports. At the time, providers would have to submit accurate data and were paid based on those cost reports.
 
Because of that, home health agencies got accustomed to spending a lot of money on those cost reports to make sure they were accurate and thorough.
 
“What happened with PPS is that CMS came out and said, ‘Well, you still have to submit cost reports, but we’re really not going to look at the data,’” Arlene Maxim, SVP of clinical services with Axxess said on the panel. “Well, they have done something. MedPAC now takes that data from the cost reports and gives that to Congress. Therein lies the problem.”
 
Over the years, Maxim said she has seen providers cutting corners firsthand when hiring accountants to put together cost reports. As the industry has evolved and demand has risen, those cost reports have taken a back seat to other operational priorities.
 
Now is the time to change that, she said.
 
“I believe that’s where our industry has gotten ourselves into a major problem,” Maxim said. “I think we’ve looked at the cost of preparing cost reports and have not looked ahead to what might possibly happen as a result of that. CMS is seeing a huge range of profit margins. I work with a lot of agencies and I know no one who is working at a 45% margin, let alone 5%. That would be generous.”
 
To make sure CMS is getting as clear of a profit picture from agencies, Maxim said hiring CPAs and other legal and financial experts with experience in the home health space is critical moving forward.
 
At the same time, Markette believes CMS is too far removed from the actual day-to-day realities of home health and hospice care.
 
“CMS still views hospice like it’s 1979,” he said. “With a lot of this stuff, they don’t understand that our cost structure today is not the same as it was in 1985. And yet, when we cry poor, they don’t believe us.”
 
Some of that onus is still on the providers, however.
 
“We have failed to give them good data,” Markette continued. “They rely on the cost report. When they look at our cost reports, they see an industry whose data shows our costs aren’t real.”
 
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