Category: Uncategorized

DOL’s HERO Act Postings Start Clock on Compliance Standards  

HCA confirming impact of separate OSHA emergency rule; join us for July 13 webinar sorting it out

Importantly, DOL clarifies that while employers must adopt plans … the plans are currently “not required to be in effect.”

The state Department of Labor (DOL) has now posted model Infectious Disease Exposure Prevention Plan templates and an Airborne Infectious Disease Exposure Prevention Standard for implementation of the NY HERO Act, starting the clock on employer compliance deadlines.

As extensively reported, the New York Health and Essential Rights Act (NY HERO Act) was signed into law on May 5, 2021 creating major airborne infectious disease control workplace requirements for most employers (those with at least 10 employees) in New York State.

The law was amended in June, requiring employers to adopt the plans within 30 days after the date that the model standards are published, as they were this week. DOL today confirmed to HCA that August 5, 2021 is, therefore, the deadline for New York employers to adopt an airborne infectious disease exposure plan.

Employers can choose to adopt the applicable policy template/plan provided by DOL (see the templates available here) or establish an alternative plan that meets or exceeds the standard’s minimum requirements. Note that DOL has not yet posted a template for the health care sector.

Employers must also provide the plan in writing to all employees in English and the primary language of the worker(s) within 30 days of adopting the plan, within 15 days of reopening due to airborne infectious disease-related closure, and to all new employees upon hire.

The newly posted standard outlines: the elements of a written exposure prevention plan and requirements for verbal review of the plan with employees; monitoring and enforcement compliance; and specific workplace exposure controls that must be included in the exposure prevention plan, such as health screenings, face coverings, physical distancing, hand hygiene facilities, cleaning and disinfection, and personal protective equipment. It also outlines anti-retaliation provisions.

Intersection with OSHA Emergency Temporary Standard? 

Complicating matters is the fact that the federal Occupational Safety and Health Administration (OSHA) has separately posted an Emergency Temporary Standard (ETS) rule requiring employers to develop and implement a plan for identifying and controlling COVID-19 hazards in the workplace. HCA has been seeking clarification on how the NY HERO Act and OSHA rule interrelate.

According to one analysis, DOL’s “Airborne Infectious Disease Exposure Prevention Standard” states that the standards do not apply to: “Any employee within the coverage of a temporary or permanent standard adopted by the Occupational Safety and Health Administration setting forth applicable standards regarding COVID-19 and/or airborne infectious agents and diseases.”

In a memo today, HCA’s government-affairs firm, Hinman Straub, interprets this to mean that providers “that are subject to the Emergency Temporary Standards (“ETS”) adopted by OSHA are excused from the NYS HERO Act obligations.”

“This is important guidance from the NYS DOL that clarifies any conflicting obligations under these laws,” the Hinman Straub memo adds. “More importantly, under the ETS, a health care provider, as defined by OSHA, is still obligated to ensure that there is a plan and it is in effect.”

HCA is confirming this interpretation directly with DOL.

July 13 Webinar to Help Sort Things Out 

We remind members that we are holding an upcoming webinar on July 13 from 2 to 3 p.m. to discuss the OSHA ETS; this webinar will specifically cover how the OSHA rule intersects with state or local mandates and guidance, like the NY HERO Act. Register today.

Many Other Questions 

This week’s posting of the NY HERO Act standards and model exposure prevention plans leaves a lot of still-unanswered questions for providers and other employers in New York State.

DOL was tasked with developing industry-specific templates, which it did for a variety of sectors, but none are posted for health care.

The newly posted standard includes general provisions for when the requirements go into effect and when plans must be activated. Each employer shall establish a written exposure prevention plan designed to eliminate or minimize employee exposure to airborne infectious agents in “the event of an outbreak of an airborne infectious disease” that has been designated.

In response to an inquiry today, a DOL representative indicated that “currently, while employers must adopt plans as required by the law, as of the date of this writing no designation has been made and plans are not required to be in effect.” 

Workplace Safety Committee 

In addition to the new standards and requirements for Infectious Disease Exposure Prevention Plans outlined above, the NY HERO Act also requires employers to establish and maintain a joint labor-management workplace safety committee with a range of duties and authorities.

The requirement for a joint labor-management workplace safety committee takes effect 180 days after the law was signed on May 5, meaning it is required by November 1.

HCA will report back to the membership as we gain answers about general applicability questions as well as any specifics for home and community-based services and employers.

Comparison Table of DOL’s Dec. 2018 and Nov. 2017 Call-in Pay Proposed Regs

Last week, HCA alerted members that the state Department of Labor (DOL) posted revisions to already-proposed employee scheduling (“call-in pay”) regulations.

HCA has prepared a document that compares the previously proposed regulations with the newly released regulations. It is posted at https://hca-nys.org/wp-content/uploads/2018/12/Call-in-Pay-side-by-side.pdf.

The newly proposed rule can be found on the DOL website at https://www.labor.ny.gov/workerprotection/laborstandards/pdfs/employee-scheduling-proposed-rule.pdf.

An initial version of these regulations was proposed on November 22, 2017, requiring employers to provide additional pay when a shift is cancelled or not scheduled within a certain advanced time requirement. It would also mandate additional pay for employees who are required to be in contact with the employer about a possible upcoming shift. HCA commented and delivered testimony on the original proposals earlier this year (see https://hca-nys.org/general-news/4547).

The revised regulations will trigger yet another comment period where HCA will reiterate our call for the state to carve-out the home care, hospice and MLTC sectors from the proposed regulations should they be adopted.

Time is Running Out: Register Now for HCA’s May 28 Conference on DSRIP, VBP and other New Models

Just nine days left to register online or through our brochure!

Like most providers, your team is surely rolling up its collective sleeves for strategic planning discussions on DSRIP and other new models, like Value Based Payments, which are very near on the horizon.

These programs are not merely tinkering with the edges of our health care system; they represent fundamental changes.

Now, and in the months ahead, your proactive and reactive work activities require an entirely new business plan, operational systems restructuring, different contract models, workforce and clinical practice reorientation, and, above all, a whole new outlook on the way you partner with other organizations.

These changes are happening swiftly. No doubt you could use a lot more answers on all of these development areas.

On May 28, just nine days away, HCA is holding a one-of-a-kind conference to help you prepare for change, asking of you the question: Are You Ready to Navigate New Models of Care and Coverage?  Continue reading “Time is Running Out: Register Now for HCA’s May 28 Conference on DSRIP, VBP and other New Models”

NEW: May 28 HCA Program Will Help you Navigate New Models of Care & Strengthen Your Business Model to Compete

DSRIP, FIDA, VBP … the alphabet soup is getting thick, and HCA members have asked for help navigating these and other new acronym-heavy payment models that are now with us and on the near horizon.

These new models will affect you; it’s only a matter of when, as the state juggles multiple waiver and Medicaid pilot initiatives with the federal government in an effort to construct incentive programs.

To help you, HCA will hold a daylong program in Albany on May 28 entitled Are You Ready to Navigate New Models of Care and Coverage? Registration is now open here.

This program is geared for home health provider and health plan CEOs, CFOs, COOs and those who need to gain a better understanding of emerging care models to position your organization successfully in a service and payment delivery environment of new models of care.

With the enactment of far-reaching health care reforms at the federal and state levels, changes to the health care delivery and payment systems are evolving quickly. It is important for home care providers to get up to speed on all of these fast-moving developments.

Speakers at this program will include top state health care program officials, expert consultants and more, including: State Medicaid Director Jason Helgerson; Value Based Payment expert Dr. Marc Berg of KPMG; Greg Allen, Director of the Division of Program Development and Management within the New York State Office of Health Insurance Programs (OHIP); Tracy E. Miller, a health law expert at Bond Schoeneck and King; and others.

In addition to providing insights on these new models, how the incentives work, and their structure, this program will also focus on how to strengthen your business model to remain competitive.

Please register today for this important program at the links below.

DOWNLOAD THE BROCHURE

REGISTER ONLINE

 

HCA’s Annual Conference: New and Enhanced, and Ready for You

Registration is now open for HCA’s Annual Membership Conference on May 6 and 7 at the Saratoga Hilton in Saratoga Springs, our premier annual event.

This year’s conference is more streamlined and fully packed with new offerings that will not only inform you but also enhance your professional credentials and development.

For the first time, this year we have applied and are awaiting approval for continuing education credits from the National Association of Boards of Examiners of Long Term Care Administrators (NAB/NCERS). We have also added an optional, Leadership Institute on the day following the conference. This special program is presented exclusively for HCA by the American College of Healthcare Executives. Designed for health care leaders at all levels, the program will provide proven tools and techniques to identify and develop your leadership philosophy and skills.

Read more here.

Executive Order No. 38 Guidebook

Governor Cuomo’s Executive Order 38 establishes limits on executive compensation and administrative expenses for entities receiving state funds, either directly or indirectly. To enforce Executive Order 38, many state agencies have promulgated similar rules that are effective for various entities within their respective jurisdictions, including rules by the state Department of Health (DOH), Office for Aging, Office for People with Developmental Disabilities, Office of Alcoholism and Substance Abuse Services, and Office of Mental Health.

Companionship Exemption Guidebook

In mid-September, 2013, the United States Department of Labor (DOL) issued a final rule that eliminates the federal “companionship exemption” for certain “domestic service” workers, including home care aides employed by agencies. The final rule also institutes new record-keeping requirements for agencies employing “live-in” staff. These changes are effective January 1, 2015. This action follows up on a proposed DOL rule issued on December 27, 2011 that covered the companionship exemption.

Home Care Worker Wage Parity Guidebook

Since March 2012 in New York City – and March 2013 in Westchester and Long Island – home care providers have been required to comply with a Worker Wage Parity Law that establishes a “minimum rate of home care aide total compensation.” Now that the rate for 2014 in New York City has reached an unsustainable level and the rate continues to increase for Westchester and Long Island, HCA has redoubled its efforts to advocate funding for home care worker compensation and benefits as well as the reimbursement, through state methodologies and managed care premiums, to support these direct care personnel.