To:
From:
Date:
Re:
Interested Congressional Committee staff
NAMD staff
May 15, 2015
NAMD comments OIG recommendations for Medicaid PCS programs.
In November 2012, the Office of Inspector General for the U.S. Department of Health and
Human Services issued a report, “Personal Care Services: Trends, Vulnerabilities and
Recommendations for Improvement.” The comments included below from the NAMD staff
are intended to convey high-level pathways and strategies that may be more feasible for states in
addressing the OIG’s overarching concerns. The NAMD staff also seek to inform federal
policymakers of the unintended consequences, policy conflicts and operational challenges posed
by the OIG’s recommendations.
General NAMD Feedback on Personal Care Service Program Compliance Issues
NAMD believes policymakers should consider the context and need for personal care services
(PCS) programs as they contemplate new legislative and regulatory proposals. PCS programs
have enabled more individuals to remain in cost effective home and community settings – a
goal which we believe is shared by federal and state policymakers and is reflective of many
consumers’ preferences.
We appreciate and acknowledge that more needs to be done to strengthen the integrity of
Medicaid PCS programs as federal and state partners work to promote and support individual
autonomy and choice in HCBS programs. In fact, in recent years states have begun to take
important steps in this direction. Still, there are areas where federal policy tools could help
support and enhance these efforts.
Any federal actions that are taken – whether legislative or regulatory -- should consider
potential ongoing costs, weighed against the potential reduction in eligibility/services for HCBS
programs.
OIG RECOMMENDATION 1: Reduce variations in State personal care service
attendant qualification standards and the potential for beneficiaries to be exposed to
unqualified attendants.
NAMD Input: NAMD notes that CMS’ has developed a background check initiative, which
includes “model language/regulations” around some of the issues related to provider
qualifications. CMS/HHS does not develop provider qualification mandates, nor do states
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believe this is an appropriate role for federal agencies. Doing so would set undesirable
precedents and is fraught with unintended consequences for other areas of the Medicaid
program.
Further, federally driven provider qualification standards for personal care workers could have
the effect of limiting consumer choice of providers and flexibility to direct their own care. It
would also likely have a detrimental impact on the availability of workers and access to services.
In addition, increased provider qualifications and payment controls will increase the cost to
states in increased training, monitoring, and auditing activities and may result in demands for
increased rates to support the workforce.
Instead, CMS has and should continue to focus on identification of effective practices and
promoting state adoption within the framework of state flexibility, for example conducting
background checks, including finger print-based checks and checking the federal exclusion lists
for contracted providers. This allows states to develop and adopt high standards for training
and certification for long term care workers while balancing state specific programs and
workforce landscape. It also allows them to adapt appropriate standards and expectations for
family caregivers, which represent a significant and growing percentage of individuals
responsible for Medicaid consumers’ care.
NAMD also is concerned that, under the U.S. Department of Labor’s 2014 Final Rule related to
home care/domestic service workers, increased federal and state involvement in establishing
worker requirements and implementing automated payment systems place states at greater risk
of being determined to be the employer or “joint employer” of workers. This could make states
liable for payment of overtime, travel time, etc. It could also hamper "cash and counseling”
models.
OIG RECOMMENDATION 2: Improve CMS’s and State’s ability to monitor billing
and care quality by requiring States to:
o Enroll all attendants as providers or require all attendants to register with their
State Medicaid agency and assign a unique provider identifier to each attendant,
o Require that claims include specific dates when services were performed and
identify the rendering attendant.
NAMD Input: Similar to the concerns noted above, additional provider qualification standards
for personal care workers could have the effect of limiting consumer choice of providers and
flexibility to direct their own care, and could have a detrimental impact on the availability of
workers and access to services.
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States do not support new federal government requirements that attendants be considered
providers. This will have complications with the U.S. Department of Labor’s 2014 Final Rule
related to home care/domestic service workers. Specifically, doing so would place states at
greater risk of being determined to be the employer or “joint employer” of workers, and liable
for payment of overtime, travel time, etc. It could also hamper "cash and counseling” models.
In addition, policymakers should recognize that increased provider qualifications and payment
controls will increase the cost to states in increased training, monitoring, and auditing activities
and may result in demands for increased rates to support the workforce.
OIG RECOMMENDATION 3: Reduce variation in States’ personal care services laws
and regulations by either creating or expanding Federal requirements and operational
guidance for:
o
o
o
o
Claims documentation
Beneficiary assessments
Plans of care
Supervision of attendants
NAMD Input: As noted above, policymakers should recognize that increased payment controls
will increase the cost to states in increased training, monitoring, and auditing activities and may
result in demands for increased rates to support the workforce. States also wish to ensure that
federal requirements do not limit the authority through which states can provide PCS (i.e.
through a HCBS waiver, state plan authority, other waiver authority, etc.)
OIG RECOMMENDATION/ISSUE 4: OIG’s body of work has found vulnerabilities
in the areas of compliance, payment, and fraud pertaining to personal care
services. Adequate safeguards to guard against fraud, waste, and abuse are critical to
avoid payments for such things as:





Hours claimed in billings that are not supported by documentation
Services failing to meet State assessment and/or prior authorization requirements
Services failing to meet State supervision requirements
Attendants that do not meet State qualifications and/or training requirements
Claims including periods during which beneficiaries are receiving institutional care
under either Medicare or Medicaid.
NAMD Input: Federal requirements on how to provide oversight to the program or restrictions
on circumstances under which a state can provide personal care will NOT be impactful and
could be contrary to goals to support individuals living in their home and community.
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Rather, states can and should provide oversight of PCS programs, including in MLTSS
programs and/or strong prior authorization, monitoring and data analytics. NAMD encourages
CMS to support states through more robust collaboration focused on this topic (i.e. as has been
done at the Medicaid Integrity Institute) and development of resources that highlight effective
compliance and oversight models and strategies and through adoption of strategies (i.e. face-toface assessments, electronic visit verification systems, etc.).
Funding to support electronic verification systems, including but not limited to telephonic
timekeeping systems, would be helpful for ensuring that the Medicaid is paying for PCS services
rendered and reducing fraud and abuse.
States also would support efforts to edit against Medicare data, for example to help prevent
payment for community services and Medicaid-paid institutional services on the same day.
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