Fall 2018

PUBLIC POLICY HCAOA The Voice 20 IN JULY, THE NEWYORK STATE DEPARTMENT OF HEALTH (DOH) issued a request for information (RFI) to develop a public need methodology for the approval of Licensed Home Care Services Agencies (LHCSAs). Prior to this, the Public Health and Health Planning Council was restricted to only reviewing the character, competence and standing in the community of and applicant for LHCSA approval. According to the DOH, the new public need methodology will ensure adequate supply of LHCSAs are available and accessible, while avoiding the proliferation of unneeded agencies. The RFI seeks recommendations for planning area designations, fac- tors to include in the methodology, exceptions to the methodology, and additional requirements or priority considerations to include. The methodology will be utilized in at least the evaluation of applications involving establishment of a LHCSA. Of particular interest to HCAOA members, the question of whether to apply the need methodology to change of ownership applications will be explored. Background In New York there are approximately 1,100 approved operators, with 1,450 licensed sites statewide. Applications for licensure as a LHCSA are submitted to the DOH and are subject to approval by the Public Health and Health Planning Council (PHHPC). As part of the application process, applications are reviewed to ensure the character, competence, and standing in the community of the applicant’s incorporators, directors, sponsors, stockholders, or operators. Applications must be submitted for initial licensure, purchase or mergers, change of ownership, or other acquisition or control change. Prior to the enactment of Chapter 57, LHCSA applications were prohibited from being reviewed based on public need. As a result, according to DOH, the number of LHCSAs operating within New York State has grown drastically with no examination of the actual need for services. Part B of Chapter 57 includes the following provision: “The public health and health planning council shall not approve an application for licensure unless it is satisfied as to: (a) the public need for the existence of the licensed home health care service agency at the time and place and under the circumstances proposed;” This provision gives the DOH the authority to develop a need methodology for the licensure of new LHCSAs. The need method- ology will be effective April 1, 2020, as Chapter 57 also instituted a two-year moratorium on all LHCSA applications effective April 1, 2018. The new need methodology will be outlined in regulation. Exceptions to the methodology and any other special consider- ations will be included. Information Request The DOH is seeking information from interested parties, including providers and the public. Responses are due by October 12, 2018. The DOH has provided a list of questions from which commenters can utilize to formulate their responses, however, information in addition to the prescribed questions is welcome. HCAOA is planning to respond to the RFI with comments and recommendations to the DOH by the October 12 deadline. Please contact info@hcaoa.org if you have any questions. NY Moratorium Law Includes Provision to Establish a Public Need Methodology for Licensed Home Care Services The National Labor Relations Board (NLRB) chairman, John Ring, recently indicated that theNLRBplans toproposea rule updating its position on joint employer liability for affiliated businesses. How the NLRB answers the joint employment question will affect how companies in franchise, staffing, and other contractual arrangements do business. The NLRB held in a decision in December that one business has to exert direct control over another’s workers to be considered their joint employer for unionization purposes. The board scrapped that decision after the agency’s inspector general said Member William Emanuel (R) shouldn’t have partic- ipated because his former law firm was connected to the case. That left in place a board decision issued when the NLRB was controlled by Democrats. That decision allows businesses in staffing, franchise, or other contractual relationships to be tagged as joint employers if they exert indirect control over another compa- ny’s workers. Ring announced in April, weeks after he was sworn in, that the board would address the controversial issue again via regulation. That would be the third time the standard has changed during the Trump administration. NLRB Likely to Move on Joint Employer Issue