OSHA Increases Civil Penalties

On January 16, 2022, the Occupational Safety and Health Administration (OSHA) increased its civil penalties based on cost of living adjustments.

Below are the maximum penalty amounts, with the annual adjustment for inflation, that may be assessed after Jan. 15, 2022. (See OSHA Memo, Jan 13, 2022).

2022 Penalty Adjustments
Type of Violation Penalty
Serious
Other-Than-Serious
Posting Requirements
$14,502 per violation
Failure to Abate $14,502 per day beyond the abatement date
Willful or Repeated $145,027 per violation

State Plan States

States that operate their own Occupational Safety and Health Plans are required to adopt maximum penalty levels that are at least as effective as Federal OSHA’s.

Penalty Payment

OSHA’s Debt Management Program provides information and guidance to employers on debt collection activity. OSHA collects penalty payments for citations issued for employer violations of OSHA regulations. Learn more about citations, penalties, and steps to take if you have a debt with OSHA.

For More Assistance

OSHA offers a variety of options for employers looking for compliance assistance.

The On-Site Consultation Program provides professional, individualized assistance to small businesses at no cost.

OSHA also has compliance assistance specialists in most of their 85 Area Offices to provide outreach and education programs for employers and workers.

For more information, contact the Regional or Area Office nearest you.

Provider Relief Fund Round 2 Reporting Now Open

  • Submit Reports by March 31, 2022

The Health Resources and Services Administration (HRSA) recently opened the Provider Relief Fund (PRF) reporting portal for providers to begin entering data to submit their second period PRF reports. Providers who received one or more General and/or Targeted PRF payments exceeding $10,000, in the aggregate, from July 1, 2020 to December 31, 2020 must report on their use of funds in Reporting Period 2.

Second period PRF reports will cover PRF payments received July 1, 2020 – December 31, 2020, which include Phase 2 and Phase 3 general distributions. The deadline to use funds for Payment Period 2 was December 31, 2021.

The deadline to submit the second period report is March 31, 2022.

HRSA has added a number of new resources to the PRF reporting website specific to the second reporting period.

Key Provider Relief Fund Resources

HRSA webinar on Period 2:

Providers who were required to report in Reporting Period 1, but did not report are out of compliance with the PRF Terms and Conditions and must return Payment Period 1 PRF payment(s) to HRSA (if you are out of compliance, see HRSA’s resource, Reporting Non-Compliance Fact Sheet). Non-compliant providers will be excluded from receiving and/or retaining future PRF payments – including any applicable Phase 4 payments. HRSA will seek repayment on all PRF payments received between April 10, 2020 – June 30, 2020 and not reported on during Reporting Period 1.

NAHC will continue to monitor all PRF reporting updates and provide timely updates to our members.

New Waived Tests

Listed below are the latest tests approved by the Food and Drug Administration (FDA) as waived tests under CLIA (Clinical Laboratory Improvement Amendments of 1988).

The CPT code, effective date and description for the latest tests approved by the FDA as waived tests under CLIA are as follows:

  • 81003QW, September 23, 2021. Teco Diagnostics Inc. Uritek TC-201 Urine Chemistry Test System;
  • October 7. 2021, Cardinal Health Strep A Dipstick – Rapid Test;
  • 80048QW, October 20, 2021, Abaxis Piccolo Blood Chemistry Analyzer {Piccolo Basic Metabolic Panel Reagent Disc} (Whole Blood);
  • 80053QW, October 20, 2021, Abaxis Piccolo Blood Chemistry Analyzer {Piccolo Comprehensive Metabolic Panel Reagent Disc} (Whole Blood);
  • 80051QW, October 20, 2021, Abaxis Piccolo Blood Chemistry Analyzer {Piccolo Electrolyte Panel Reagent Disc} (Whole Blood);
  • 82374QW, 82435QW, 82550QW, 82565QW, 82947QW, 84132QW, 84295QW and 84520QW, October 20, 2021, Abaxis Piccolo Blood Chemistry Analyzer {Piccolo Metlyte 8 Panel Reagent Disc} (Whole Blood);
  • 80069QW, October 20, 2021, Abaxis Piccolo Blood Chemistry Analyzer {Piccolo Renal Function Panel Reagent Disc} (Whole Blood);
  • 80048QW, October 20, 2021, Abaxis Piccolo xpress Chemistry Analyzer {Piccolo Basic Metabolic Panel Reagent Disc} (Whole Blood);
  • 80053QW, October 20, 2021, Abaxis Piccolo xpress Chemistry Analyzer {Piccolo Comprehensive Metabolic Panel Reagent Disc} (Whole Blood);
  • 80051QW, October 20, 2021, Abaxis Piccolo xpress Chemistry Analyzer {Piccolo Electrolyte Panel Reagent Disc} (Whole Blood);
  • 82374QW, 82435QW, 82550QW, 82565QW, 82947QW, 84132QW, 84295QW and 84520QW, October 20, 2021, Abaxis Piccolo xpress Chemistry Analyzer {Piccolo Metlyte 8 Panel Reagent Disc} (Whole Blood);
  • 80069QW, October 20, 2021, Abaxis Piccolo xpress Chemistry Analyzer {Piccolo Renal Function Panel Reagent Disc} (Whole Blood); and
  • 87880QW, November 10, 2021, Cardinal Health H. Pylori Rapid Test – Whole Blood/Serum Cassette (Whole Blood).

Some home health and hospice agencies perform tests that are considered waived under the CLIA which requires the home health agency or hospice to have a CLIA Certificate of Waiver.  Waived tests a home health or hospice agency may perform include, but are not limited to:

  • Blood glucose by glucose monitoring devices cleared by the FDA for home use
  • Prothrombin time home tests (PT/INR)
  • Dipstick or tablet reagent urinalysis
  • Flu test
  • Drug test

Performing these types of tests, and any included in the Tests Granted Waived Status Under CLIA table, requires the agency to have a current CLIA certificate of waiver.  An agency that obtains a sample and takes it to a laboratory for testing is not required to hold a CLIA certificate of waiver for that particular test, i.e. PT/INR where the agency’s personnel obtain a blood sample from the patient and take that sample to a laboratory for testing.

Hospice Mandatory Reporting Reminder: Deadline for Self-reporting of Aggregate Cap is Feb 28

Hospice providers are required to self-calculate and submit their Aggregate Cap Report for the 2021 Cap year no later than February 28, 2022. Failure to file the self-determined cap report with your Medicare Administrative Contractor (MAC) in a timely fashion may result in payment suspension. If you have a Cap-related liability, you are required to submit payment at the time you submit your report.

In order to calculate the Cap, you must be able to access your hospice’s PS&R data, so if you do not have access to CMS’ Identify Management System (formerly EIDM), through which the PS&R data is available) it is advisable that you take action immediately to ensure timely access so that you can meet the reporting deadline.

All three MACs for Home Health and Hospice have online instructions for self-calculation and submission of the Cap report; the information is available at the following locations:

Palmetto GBA

Recent postings to the Palmetto GBA website about the aggregate cap report are  available HERE and HERE.

Palmetto serves Home Health and Hospice providers in Alabama, Arkansas, Florida, Georgia, Illinois, Indiana, Kentucky, Louisiana, Mississippi, New Mexico, North Carolina, Ohio, Oklahoma, South Carolina, Tennessee, and Texas.

CGS

Recent CGS online postings about the aggregate cap report are available HERE.

CGS serves Home Health and Hospice providers in Colorado, Delaware, Iowa, Kansas, Maryland, Missouri, Montana, Nebraska, North Dakota, South Dakota, Pennsylvania, Utah, Virginia, West Virginia, Wyoming, and the District of Columbia.

NGS

NGS has updated its Hospice Cap self-calculation guidance; it is available online on the NGS website HERE.  The form is available in the NGS FORMS section.

NGS has two Home Health and Hospice Jurisdictions (JK and J6) and serves providers in the following states:  Alaska, American Samoa, Arizona, California, Connecticut, Guam, Hawaii, Idaho, Maine, Massachusetts, Michigan, Minnesota, Nevada, New Hampshire, New Jersey, New York, Northern Mariana Islands, Oregon, Puerto Rico, Rhode Island, US Virgin Islands, Vermont, Wisconsin, and Washington.

Supreme Court Blocks Biden’s Covid Rule for Biz, Upholds Health Worker Mandate

The Supreme Court handed down a split decision on two Biden administration workplace rules to stop the spread of the novel coronavirus COVID-19, blocking an OSHA rule requiring businesses with at least 100 employees to compel their workers to get vaccinated or wear masks and test negative at least once per week, but upholding a separate rule from the Centers for Medicare & Medicaid Services (CMS) requiring vaccination for about 20 million health care workers.

The OSHA rule would have covered about 80 million workers and administration estimated it would save about 6500 lives in six months.

“Today’s decisions from the U.S. Supreme Court brings home care a step closer to the essential clarity that is needed to determine what is required for compliance,” said NAHC President William A. Dombi in response to the rulings. “The OSHA rule is blocked from implementation and enforcement for the moment. The CMS rule can full take effect for the moment. Both cases return to the lower courts for further adjudication. The Administration has further options option to it. We strongly encourage both Congress and the Administration to quickly reach a conclusion so that affected health care businesses can focus on providing care. Infection control in patient care and staffing is an essential responsibility in all of health care. Home care is committed to protecting its patients and its staff from Covid-19.“

The decision once again laid bare the sharp ideological differences that exist on the court.

“Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly,” wrote the court’s six-member conservative majority. “Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”

The court’s three liberal justice dissented fiercely, writing that the majority was replacing OSHA’s expertise with its own, which lacks the necessary knowledge in public health.

“In the face of a still-raging pandemic,” wrote the dissent, “this court tells the agency charged with protecting worker safety that it may not do so in all the workplaces needed. As disease and death continue to mount, this court… usurps a decision that rightfully belongs to others. It undercuts the capacity of the responsible federal officials, acting well within the scope of their authority, to protect American workers from grave danger.”

NAHC has prepared bullet points to help you understand what these rulings mean for home care and hospice.

OSHA Rule

  • Court majority (6-3) finds that OSHA does not have the authority to issue a broad-based rule that is not specifically focused on occupational hazard affecting workers;
  • Majority views the OSHA rule as more a “public health” action rather than an occupational health one. OSHA does not have public health regulatory authority;
  • OSHA can regulate worker safety “where the virus poses a special danger” because of the employees job functions or workplace. Examples include where the employee is working with the virus or working in a crowded environment;
  • While the Court’s action stops the OSHA rule in its current form, OSHA may consider refining the rule to target certain workers in certain workplaces. This clearly could include health care settings for those entities not subject to the CMS rule.  Such action is not likely to occur quickly but is a strong possibility;
  • States that had been on the fence with respect to employer mandates may now move forward given the limitation on federal power and the Courts direct recognition that states have such power;
  • While the Court suggested that Congress might have the power to enact similar requirements to those under the OSHA rule, it is highly unlikely that such would pass in the current Congress. Earlier, a majority of the Senate opposed the OSHA rule;
  • NAHC recommends that home care companies return to focus on the expired OSHA Healthcare ETS as it may be the next generation of OSHA action as it is more targeted to a specific workplace hazard; and
  • While the OSHA case has been returned to the lower court for further adjudication, it can be expected that OSHA will ultimately lose on the existing rule. A new, targeted rule remains possible with the likelihood that new litigation will follow.

The OSHA rule was originally blocked by lower courts, but a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit reversed the lower court rulings, calling the rule “an important step in curtailing the transmission of a deadly virus that has killed over 800,000 people in the United States, brought our health care system to its knees, and cost hundreds of thousands of workers their jobs.”

The Supreme Court ruling earlier today reverses the Sixth Circuit Court of Appeals decision.

CMS Rule

  • Court majority (5-4) finds clear authority for CMS to require measures, including vaccines, to protect patients and regulate provider staff qualifications
  • “Health and safety” rulemaking authority provides CMS with the ability to address a broad range of issues within its expertise
  • Majority concludes that such authority is inferred for all providers subject to conditions of participation even without express language. e.g. home infusion providers
    • Court explains that there is a provision in the rule that permits severing parts of the rule that are deemed outside of CMS authority
    • This may create an issue for the lower courts to address as the SCt sent the case back for continuing review since it was acting only on the issue as to whether a preliminary stay of the rule should continue
  • NAHC expects CMS will move quickly to bring to rule into enforcement consistent with the recent guidance issued that is applicable to the states where the injunction was not in place
  • NAHC expects that CMS will prevail ultimately in the validity of the rule. As such, we highly recommend that affected providers move forward to full compliance.

CMS released the following statement after the Supreme Court decision, setting compliance dates for the 24 states that had been subject to the injunction against the CMS rule.

As a result of today’s decision, health care providers subject to the Omnibus Health Care Staff Vaccination rule in the 24 states (Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia, and Wyoming) covered by this decision will now need to establish plans and procedures to ensure their staff are vaccinated and to have their employees receive at least the first dose of a COVID-19 vaccine.

Today’s decision does not affect compliance timelines for providers in the District of Columbia, the territories, and the 25 states where the preliminary injunction was previously lifted. See the guidance released on December 28, 2021, for additional information.

Previously, two federal appeals courts halted enforcement of the CMS rule in 24 states, but it did go into effect in the remaining states.

Guard Your Card – Protect What’s Important to You and Your Patients

The Social Security Administration is asking NAHC to help spread the word about carefully guarding their private Social Security information. The best way to “Guard Your Card” is to keep it in a safe place and share it only when required. Do not carry the card every day. In fact, in most cases, just knowing the Social Security number should be enough. For example, when requesting a Real ID, all states, except for Pennsylvania, no longer require seeing your Social Security card.

Your clients should be careful about sharing their Social Security number when asked for it. It’s important to always ask why the number is needed, how it will be used, and what will happen if it is not provided.

If your client needs to request a replacement Social Security card, they may be able to use their personal my Social Security account to request it on our website. If they live in one of 45 participating states or the District of Columbia, and they do not need any changes to the replacement card, they can request it free online.

Visit Social Security Number and Card webpage to learn more about Social Security cards. Read and share our factsheet, How You Can Help Us Protect Your Social Security Number and Keep Your Information Safe, and infographic, Guard Your Card, with your clients, friends, and family.

Updates on Pediatric Palliative Care Task Force Actions in New Edition of PPC Now

The 2021 Holiday edition of PPC NOW is now available and in addition to updates on the National Pediatric Palliative Care Task Force’s annual meeting and workgroup activities, this edition features two parents’ personal and intimate spiritual journeys in caring for their seriously ill children and Amanda Borchik, a staff chaplain at Vanderbilt University Medical Center, talks about the role of a PPC chaplain.

You can access PPC NOW here.

To subscribe (at no charge) click here.

The National Pediatric Palliative Care Task Force is operated by the National Coalition for Hospice and Palliative Care, of which the National Association for Home Care & Hospice (NAHC) is a member.

A New Paradigm Is Needed: Top Experts Question the Value of Advance Care Planning

For decades, Americans have been urged to fill out documents specifying their end-of-life wishes before becoming terminally ill — living wills, do-not-resuscitate orders, and other written materials expressing treatment preferences.

Now, a group of prominent experts is saying those efforts should stop because they haven’t improved end-of-life care.

“Decades of research demonstrate advance care planning doesn’t work. We need a new paradigm,” said Dr. R. Sean Morrison, chair of geriatrics and palliative medicine at the Icahn School of Medicine at Mount Sinai in New York and a co-author of a recent opinion piece advancing this argument in JAMA.

“A great deal of time, effort, money, blood, sweat and tears have gone into increasing the prevalence of advance care planning, but the evidence is clear: It doesn’t achieve the results that we hoped it would,” said Dr. Diane Meier, founder of the Center to Advance Palliative Care, a professor at Mount Sinai and co-author of the opinion piece. Notably, advance care planning has not been shown to ensure that people receive care consistent with their stated preferences — a major objective.

“We’re saying stop trying to anticipate the care you might want in hypothetical future scenarios,” said Dr. James Tulsky, who is chair of the department of psychosocial oncology and palliative care at the Dana-Farber Cancer Institute in Boston and collaborated on the article. “Many highly educated people think documents prepared years in advance will protect them if they become incapacitated. They won’t.”

The reasons are varied and documented in dozens of research studies: People’s preferences change as their health status shifts; forms offer vague and sometimes conflicting goals for end-of-life care; families, surrogates and clinicians often disagree with a patient’s stated preferences; documents aren’t readily available when decisions need to be made; and services that could support a patient’s wishes — such as receiving treatment at home — simply aren’t available.

But this critique of advance care planning is highly controversial and has received considerable pushback.

Advance care planning has evolved significantly in the past decade and the focus today is on conversations between patients and clinicians about patients’ goals and values, not about completing documents, said Dr. Rebecca Sudore, a professor of geriatrics and director of the Innovation and Implementation Center in Aging and Palliative Care at the University of California-San Francisco. This progress shouldn’t be discounted, she said.

Also, anticipating what people want at the end of their lives is no longer the primary objective. Instead, helping people make complicated decisions when they become seriously ill has become an increasingly important priority.

When people with serious illnesses have conversations of this kind, “our research shows they experience less anxiety, more control over their care, are better prepared for the future, and are better able to communicate with their families and clinicians,” said Dr. Jo Paladino, associate director of research and implementation for the Serious Illness Care Program at Ariadne Labs, a research partnership between Harvard and Brigham and Women’s Hospital in Boston.

Advance care planning “may not be helpful for making specific treatment decisions or guiding future care for most of us, but it can bring us peace of mind and help prepare us for making those decisions when the time comes,” said Dr. J. Randall Curtis, 61, director of the Cambia Palliative Care Center of Excellence at the University of Washington.

Curtis and I communicated by email because he can no longer speak easily after being diagnosed with amyotrophic lateral sclerosis, an incurable neurologic condition, early in 2021. Since his diagnosis, Curtis has had numerous conversations about his goals, values and wishes for the future with his wife and palliative care specialists.

“I have not made very many specific decisions yet, but I feel like these discussions bring me comfort and prepare me for making decisions later,” he told me. Assessments of advance care planning’s effectiveness should take into account these deeply meaningful “unmeasurable benefits,” Curtis wrote recently in JAMA in a piece about his experiences.

The emphasis on documenting end-of-life wishes dates to a seminal legal case, Cruzan v. Director, Missouri Department of Health, decided by the Supreme Court in June 1990. Nancy Cruzan was 25 when her car skidded off a highway and she sustained a severe brain injury that left her permanently unconscious. After several years, her parents petitioned to have her feeding tube removed. The hospital refused. In a 5-4 decision, the Supreme Court upheld the hospital’s right to do so, citing the need for “clear and convincing evidence” of an incapacitated person’s wishes.

Later that year, Congress passed the Patient Self-Determination Act, which requires hospitals, nursing homes, home health agencies, health maintenance organizations and hospices to ask whether a person has a written “advance directive” and, if so, to follow those directives to the extent possible. These documents are meant to go into effect when someone is terminally ill and has lost the capacity to make decisions.

But too often this became a “check-box” exercise, unaccompanied by in-depth discussions about a patient’s prognosis, the ways that future medical decisions might affect a patient’s quality of life, and without a realistic plan for implementing a patient’s wishes, said Meier, of Mount Sinai.

She noted that only 37% of adults have completed written advance directives — in her view, a sign of uncertainty about their value.

Other problems can compromise the usefulness of these documents. A patient’s preferences may be inconsistent or difficult to apply in real-life situations, leaving medical providers without clear guidance, said Dr. Scott Halpern, a professor at the University of Pennsylvania Perelman School of Medicine who studies end-of-life and palliative care.

For instance, an older woman may indicate she wants to live as long as possible and yet also avoid pain and suffering. Or an older man may state a clear preference for refusing mechanical ventilation but leave open the question of whether other types of breathing support are acceptable.

“Rather than asking patients to make decisions about hypothetical scenarios in the future, we should be focused on helping them make difficult decisions in the moment,” when actual medical circumstances require attention, said Morrison, of Mount Sinai.

Also, determining when the end of life is at hand and when treatment might postpone that eventuality can be difficult.

Morrison spoke of his alarm early in the pandemic when older adults with covid-19 would go to emergency rooms and medical providers would implement their advance directives (for instance, no CPR or mechanical ventilation) because of an assumption that the virus was “universally fatal” to seniors. He said he and his colleagues witnessed this happen repeatedly.

“What didn’t happen was an informed conversation about the likely outcome of developing covid and the possibilities of recovery,” even though most older adults ended up surviving, he said.

For all the controversy over written directives, there is strong support among experts for another component of advance care planning — naming a health care surrogate or proxy to make decisions on your behalf should you become incapacitated. Typically, this involves filling out a health care power-of-attorney form.

“This won’t always be your spouse or your child or another family member: It should be someone you trust to do the right thing for you in difficult circumstances,” said Tulsky, who co-chairs a roundtable on care for people with serious illnesses for the National Academies of Sciences, Engineering and Medicine.

“Talk to your surrogate about what matters most to you,” he urged, and update that person whenever your circumstances or preferences change.

Most people want their surrogates to be able to respond to unforeseen circumstances and have leeway in decision-making while respecting their core goals and values, Sudore said.

Among tools that can help patients and families are Sudore’s Prepare for Your Care program; materials from the Conversation ProjectRespecting Choices and Caring Conversations; and videos about health care decisions at ACP Decisions.

The Centers for Disease Control and Prevention also has a comprehensive list of resources.

We’re eager to hear from readers about questions you’d like answered, problems you’ve been having with your care and advice you need in dealing with the health care system. Visit khn.org/columnists to submit your requests or tips.

Subscribe to KHN’s free Morning Briefing.

Hospice News & Notes

Hospice News & Notes is a new feature for the Hospice & Palliative Care Report. This rapid-fire article will quickly alert you to news and developments in the world of hospice and palliative care with a sentence or two and a link to learn more. Read on.

The State of the Market: From Valuations to Volume in 2022 and Beyond

  • Thursday, Jan 20, 2022
  • 2:00 – 3:00 pm ET
  • REGISTER
  • Free to members!

Join the National Association for Home Care & Hospice for this up-to-date look at the home health, home care, hospice and behavioral health markets, including current supply and demand, valuation trends, and how regulatory changes and potential increases to capital gains tax rates may affect market performance in 2022.

Learning objectives:

  • Explain how upcoming regulatory changes and potential capital gains tax increases could affect health care industry transactions;
  • Describe how to prepare for a potential future sale of a health care company and what to expect during the course of a transaction;
  • Discuss projections for the home health, home care, hospice and behavioral health markets in 2022.

Faculty:

  • Rich Tinsley
  • Tom Lillis
  • Brian Bruenderman

Price: Free to NAHC members // $99 for non-members

REGISTER NOW