MAKING NEW JERSEY HOME CARE BETTER
It is extremely important to recognize the inherent dangers and increased risk of harm in the delivery of care, by allowing the placement of untrained, unsupervised, independent, nonprofessional caregiver in the home, and service delivered by providers that are not licensed and lack basic corporate and financial infrastructure. This includes leaving both the consumer and worker without basic protections and exploits the care giver. New Jersey is to be commended for taking the necessary steps to protect the home care consumer and care giver.
It is clear that NJ licensed or certified para-professional [Certified Home Health Aide (CHHA), Certified Nursing Assistant (CNA), Personal Care Assistant (PCA)], live-ins and companion caregivers do not qualify as an independent contractor, self-employed, sitters or a 1099 workers under the IRS rules. Likewise, under current New Jersey law and regulation a CHHA must work for an established provider organization and under the supervision of the Registered Professional Nurse. Therefore, advertising, accepting placement or arranging the placement of a CHHA, CNA, PCA, live-in or companion in the home where this caregiver is acting as an independent contractor is contrary to federal and NJ law. This leaves no doubt that if the caregiver is hired privately by a consumer, they are both acting illegal, as is any organization, including registries, internet based companies or internet job lists, who facilitate placement of a caregiver as an independent worker regardless of receiving a fee or not for the placement.
To permit untrained and unsupervised nonprofessional caregivers, who operate outside any legal and regulatory restrictions, to provide care is to allow them to perform any task at the discretion of the consumer, including those that would be provided by other licensed healthcare practitioners (RN, PT, OT, etc.).
Every consumer deserves some amount of basic protection, and the government has a fundamental obligation to protect its citizens. In health care, mitigating harm is often achieved through governmental regulation and licensing, which ensures a basic level of competency by the practitioner, thereby establishing necessary benchmarks for safe care and appropriate care delivery standards for the provider organization. Therefore, to allow untrained, unsupervised independent caregivers into the home to provide indispensable care is to disregard an essential governmental responsibility, deprive the consumer and caregiver of basic protections, and increases the chance of harm.
Obviously, employment by a lawful organization is the safest and only legitimate working relationship for a home care client and nonprofessional and companion caregiver. Therefore, the first requirement for safe, accountable home care is the establishment of an organizational corporate and governance structure and the implementation of a mechanism for financial integrity. This means the home care organization must have governance, adhere to all employer mandates, as well as maintain adequate liability and malpractice insurance, and have a sound financial base and financial reporting system in place that demonstrates compliance with these responsibilities. Thus, ensuring essential safeguards for both caregivers and consumers.
These financial duties are; establishing policies including fraud and corporate compliance, developing and maintaining adequate financial internal controls, keeping accurate and timely financial and accounting records, establishing internal and external reporting requirements, financial planning goals, and business resilience plans. Likewise, sound financial practices improve the management and permanence of the organization and assures the client and caregiver that the company is properly exercising its legal responsibilities and able to meet its financial obligations. In addition, for those provider organizations who receive government funds, some form of independent auditing should be required to establish the public trust by ensuring the public funding is spent according to government mandates.
But the private pay only home care organization’s financial well-being relies solely on payment from the consumer, and the consumer provides the necessary control and scrutiny in that relationships to ensure the accuracy of the billing, payment, and delivery of service. Therefore, independent auditing makes no sense, adds no value, and only increases the cost unnecessarily. However, this does not exclude the organizations from good governance and maintaining financial integrity by adhering to basic sound financial and accounting principles, which are indispensable to consumer, caregiver and company protection.
Despite the number of Certified Home Health Aides (CHHA) already available in the NJ workforce, there still remains a critical shortage. Right now, provider organizations are having difficulty staffing demand for their service with CHHA. Thus, restricting access to needed care and adding needless price increases and thereby, affordability, further reducing entry to service.
The lack of reciprocity between NJ State government departments of trained, competent care givers also contributes to the lack of an adequately trained home care workforce. The Certified Nursing Assistant (CNA), Unlicensed Assistive Personnel (UAP) and Personal Care Assistant (PCA) all have skills training and competency evaluation, as set by State regulatory training standards, comparable to the Certified Home Health Aide (CHHA). Allowing for these qualified workers to be engaged in home care is vital to immediately expanding access to care in the home and meeting the rapidly escalating need for these services.
Additionally, the narrow interpretation of the care to be done in the home has likewise limited the available workforce. There is no question that training and supervision is essential to safe, competent care in the home. Now that companion care has been brought into the licensing regulations, it seems appropriate to recognize the value of this level of care, and those who provide it as a new source of potential certified home care workers. Starting as a Companion and working towards the CHHA designation gives a career path to a workforce that currently has none. This achievement also helps in the retention of the home care workforce by recognizing the work as a valuable and career worthy endeavor.
LEVELS OF CARE
Now that the companion level of care is part of licensing, defining the levels of care to more accurately reflect the job tasks needed to carry out the care, will not only help home care remain affordable, but expand the workforce and significantly open access to care and provide a clearer understanding of the difference between companion and personal care services. The current restrictive interpretation of personal care has kept provider organizations from hiring, training and supervising companions for fear of non-compliance with the definition of personal care. A better and clearer definition of the levels of care will allow provider agencies to hire Companions, who will have the potential to go on to become CHHA. Thus, increasing the pool of available skilled home care workers, but for now at least easing the shortage of available care givers by allowing companions to do truly companion work.
There are three things to consider when determining the appropriate level of paraprofessional care and defining allowable physical contact at each level. They are the:
• Tasks to be performed and the Intent of the physical contact. Are the tasks to be performed and the intent of the physical contact for treatment, therapeutic, restorative, or curative reasons? These tasks and physical contact would be what is necessary to carry out personal care and hygiene, grooming, toileting, dressing, feeding, ambulation, transferring, exercise, help with assistive devises or prosthesis, tasks in support of a medical plan of treatment or requiring nursing judgement, and other nurse delegated tasks related to Activities of Daily Living (ADL) in support of the client’s safety, well-being or health outcomes.
Then there are tasks in support of Instrumental Activities of Daily Living (IADL). These tasks and “incidental touching” would be what is necessary to carry out activities such as homemaking, the use of a telephone and other household devises, shopping, food and meal preparation, housekeeping, laundry, transportation, companionship/socialization, and touch incidental to these activities. The physical touch would include normal physical contact or “polite touching” such as holding the client’s hand while getting in and out of the car, assisting with buttoning or fastening clothing, queuing touch, helping the client grasp a phone or other device, and touching that is needed to engage in games or other social activities. These tasks and physical contact are not intended for treatment, therapeutic, restorative or curative reasons, help with personal care and ADLs, do not require nursing judgement, and is solely in support of companionship or IADL activities.
• The second concern for appropriate level of care and physical contact is the condition of the client. This is important since the physical, health and/or cognitive condition of the client will dictate the nature of the tasks to be performed and degree and intent of physical contact, and the client’s ability to either do the necessary activities of daily living alone, with assistance or are dependent on others for this care. Clients who require personal care services (ADL) would have this care provided by a properly licensed or certified caregiver (CHHA, CNA, UAP, PCA). Clients who needs only companion and homemaker services (IADL), could receive the services of a trained, supervised companion caregiver.
• The third consideration is the request for the type and extent of the service. Under current NJ regulation the Nurse has a duty to refuse to assign, and the CHHA has the duty to refuse to accept a delegated task she/he does not possess the competency to carry out. In otherward, the nurse is to use their professional judgement to decide which level of care is appropriate, and the tasks to be assigned to the caregiver. Consequently, in order to determine the appropriate level of care, a nurse must assess the client’s home and physical condition in order to verify that the requested service complies with the nature and need of the service asked for.
It is quite possible for a family or client to request companionship services for a client who would otherwise require a properly licensed or certified caregiver level of care. If, in the nurse’s judgement, the care needed is only companion (IADL), then the placement of a trained and supervised Companion care giver would be appropriate. However, the nurse does have the responsibility to place a CHHA is all cases where personal care (ADL) is performed, regardless of the client or families request.
The National Strategy for Quality Improvement in Health Care was led by the Agency for Healthcare Research and Quality on behalf of the U.S. Department of Health and Human Services, and was mandated by the Patient Protection and Affordable Care Act. The National Quality Strategy was developed through a transparent and collaborative process with input from a range of stakeholders and was first published in March 2011. The National Quality Strategy focuses on six priorities:
• Making care safer by reducing harm caused in the delivery of care.
• Ensuring that each person and family is engaged as partners in their care.
• Promoting effective communication and coordination of care.
• Promoting the most effective prevention and treatment practices for the leading causes of mortality, starting with cardiovascular disease.
• Working with communities to promote wide use of best practices to enable healthy living.
• Making quality care more affordable for individuals, families, employers, and governments by developing and spreading new health care delivery models.
Certainly, there is no better care delivery model then home care to achieve these goals. Likewise, there is no better place than home to promote healthy living. Just the fact that care is in the home of the consumer makes their partnership innately essential to effective, safe care. Not to mention most everyone prefers care in the home to institutional care.
Taking the following Action Steps will not only help achieve these priorities, but also assure that the NJ legal and regulatory structure is aligned to achieve the delivery of safe, accountable and affordable non-professional home care in New Jersey.
1. “BON Best Practices”: There are two requirements in the NJ Board of Nursing “Best Practices” that either significantly increase the cost of care at no added value to safety or quality of care, or is not relevant to the home care setting and should be eliminated. First is the need for the 30-day call to the client by a Registered Nurse. For companion level cases where the client’s condition is stable, there is no personal care and service is for socialization, companionship, housekeeping or errands, there is no value in having the nurse call the client monthly, since very little will change and the service is not based on any medical condition of the client. Therefore, for a nurse to call these clients adds significant cost to this care and unnecessarily raising the fee to the client. However, there should be regular in-home supervision of this level of care, as well as monthly client calls made by the service coordination staff for problem identification and consumer satisfaction. For cases where personal care is a part of the plan of care the “Best Practices” require a 60-day reassessment home visit, or more often in the nurse’s judgement, as well as the requirement of the CHHA to notify the Nurse of changes through the Weekly Activity Report, are more informative and direct way of monitoring the care. Thus the 30-day call adds no real usefulness or significant insight of the case, but again negatively impacts the cost drastically and should be eliminated. The second practice is the requirement for a “Job Order.” This is a facility based document that has no relevance to home care, since the “Best Practices” require an Intake Interview, Assessment and Plan of Care. Likewise, this should be eliminated.
2. Caregiver reciprocity: There exists an already prepared workforce within New Jersey that can help ease the CHHA shortage safely. Certified Nursing Assistant (CNA), Personal Care Assistant (PCA), and Unlicensed Assistive Personnel (UAP) are currently trained through State approved training programs and curriculum in skill areas that equal that of the CHHA. Granting reciprocity to these care givers to allow them to work in the home would immediately add qualified personnel to the providers’ available workforce. All of these classifications possess the necessary personal care skills, through training and competency evaluation, to safely provide that care in the home. The need for the additional approved ten (10) hours training is recognized and should be completed within the first three (3) months of employment by a Health Care Service Firm, thus ultimately making the CNA, PCA, and UAP a CHHA.
3. Include internet and registries in Chapter 29 law: Any organization, including an internet company, a registry (internet or otherwise), internet job site or list, or any anyone who places or facilitates the placement of a caregiver in a person’s home, regardless of receiving a fee or not, for the purpose of providing live-in, companionship, homemaking or personal care, must be required to register and become licensed as a Health Care Service Firm, obtain accreditation according to the Chapter 29 law, and directly employ the caregiver. To otherwise eliminate these organization is to place the consumer at substantial risk of harm and legal action and continues to exploit the care giving worker.
4. Penalty for failure to comply with Chapter 29 law: Any organization, including an internet company, a registry (internet or otherwise), internet job site or list, or any anyone who places or facilitates the placement of a caregiver in a person’s home, regardless of receiving a fee or not, for the purpose of providing personal care services, who is not a qualified CHHA, CNA, UAP, PCA shall have their Temporary Help. Personnel Service, Consulting or Health Care Service Firm licensed revoked.
5. Fiscal Audit: The fiscal audits as outlined in Chapter 29 create an enormous unnecessary burden on private pay providers and the DCA and has no relevance to these providers or to the State since these are private companies doing business with the consumer directly. Therefore, audit requirement should be for the provider organizations that receives revenue from government sources or programs.
6. A clearer definition of the levels of care: By allowing for a more realistic definition of levels of care will help keep service affordable, increase the qualified workforce, open access to needed care, and provide clearer guidelines for providers when making the caregiver placement decision. The definitions should include:
• Personal Care Service:
Personal care service is care performed by properly licensed or certified personnel, under the supervision of a Registered Professional Nurse, where the assigned tasks and intent of the physical contact is for treatment, therapeutic, restorative, or curative reasons, and the physical contact is necessary to carrying out the plan of care tasks in support of the client’s health and wellness. Personal care includes bathing, grooming and hygiene, toileting, dressing, feeding, ambulation, transferring, exercise, help with assistive devises or prosthesis, tasks in support of a medical plan of treatment or requiring nursing judgement and delegation, and other nurse delegated tasks related to Activities of Daily Living (ADL).
Companion services are basic supervision, homemaking, companionship and socialization services, which do not include assistance with Activities of Daily Living (ADL) and touch incidental to these activities. This “Incidental touching” would include normal physical contact or “polite touching” such as holding the client’s hand while getting in and out of the car, assisting with buttoning or fastening clothing, queuing touch, helping the client grasp a phone or other device, or touching that is needed to engage in games or other social activities. These tasks and physical contact are not intended for treatment, therapeutic, restorative or curative reasons, help with personal care and ADLs, do not require nursing judgement, and is solely in support of homemaking, companionship or IADL activities.
7. Streamlining the certification process: Streamlining the certification process will help increase the CHHA workforce and open access to care. The following is proposed:
• Have all persons requesting to become a CHHA complete the require application and background check prior to the training course, and have the applicant pay for this background check or include it in the BON application fee, since this check is the primary qualifying or disqualifying condition of certification. By having the background checks accomplished prior to training, then those people who are not eligible to become CHHA as a result of the background check, would not have the time and expense of training, not to mention that the student may have to stop working in order to take the training. Furthermore, the training site would not have the expense of training someone who is not going to be certified, the employing agency would not have the expense of hiring and then discharge an employee because they are not qualified for CHHA, and the BON would not have to process a disqualified applicant’s application.
Upon verification of the completion of training and the application to the BON, the background check will have already been done, allow the fully trained and vetted CHHA to begin working immediately for the employing provider organization. This provisional employment would continue until the provider organization was notified by the BON that the employee is not eligible to work as a CHHA, or the BON issues the certification for Home Health Aide at which time the provisional status would be removed.