Spring Summer 2018

www.ohca.com Spring/Summer 2018 The Oregon Caregiver 19 LEGAL & REGULATORY Long Term Care Referral Agencies (HB 2661) The primary effect of this bill is to regulate long term care referral agencies, which until this bill passed were not regulated in Oregon. While the rules are not yet final, their content is largely known and OHCA member facilities should be alert to the following key pieces of information. Compensation: The rules as currently drafted exclude a facility employee from the definition of long term care referral agent unless the person receives compensation of any kind in exchange for a referral. Compensation means any substantive financial or material gain from a facility in an amount of $1,000 or more during a calendar year, including gain from a number of sources such as salary, benefits, commission, payment, gift cards, donations, discounts, and other items of value. The takeaways for providers: • Establish policies that either prohibit any form of compensation directly resulting from a referral or require monitoring and documentation of any compensation received, including things like gift cards, to be sure they never amount to $1,000 a year. • If compensation reaches $1,000 or more, the employee who received the compensation must register as a long term care referral agent and comply with the requirements in the bill. • OHCA is working to make it clear in the rules that an employee who has within his or her job duties referral of residents to other facilities as necessary, such as a social worker, is not be considered a long term care referral agent by virtue of their salary. Contract revisions: Long term care refer- ral agents must include language in their contracts with facilities, either in new contracts or upon renewal, that makes it clear the agent is not entitled to compen- sation when a new referral agent has taken over referrals for a resident. Agencies are responsible for including the language. The takeaways for providers: The law says: A referral agent must include in any contract with a facility provisions prohibiting the referral agent from col- lecting compensation from the facility when the facility is a subsequent facility. A facility is a subsequent facility if: • (A) The subject of placement enters a facility to which the subject of placement is referred by a first referral agent, but subsequently leaves that facility; and • (B) A new referral agent refers the subject of placement to the subsequent facility. When a referral is made to a subsequent facility by a new referral agent, the new referral agent must present evidence to the subsequent facility that the first referral agent is not entitled to compensation. • Monitor when your contracts with long term care referral agencies expire and prompt the referral agency to provide the necessary contract amendment language. • Remember that many of your contracts have what are known as “evergreen” clauses, which cause contracts to automatically renew if there is no objection from either party. Know when these clauses kick in and be sure to request amendments prior to automatic contract renewals. Department of Human Services Medicaid Eligibility Rules Unrelated to last year’s legislative session, DHS has elected to reevaluate changes to the Medicaid eligibility rules that have been adopted. These rules changed the requirements for an individual to be eligible to receive Medicaid-funded services and, in many cases, raised the bar for eligibility. While intended to eliminate unnecessary Medicaid spending and meet budget goals, many stakeholders are concerned that these rules may present barriers for some vulnerable individuals to receive necessary care. As the department evaluates options, they have elected to not enforce the current rules. OHCA will advise members of any changes in this position or of any new eligibility rules through our newsletters and at member council meetings.  Gwen Dayton, J.D., is the Executive VP & General Counsel at OHCA.