Electronic Visit Verification (EVV) Is Here: What you need to know and how to get involved
The 21st Century Cures Act, signed into law December 2016, requires all home health care services and personal care services paid by Medicaid to use electronic visit verification (EVV) systems. This means that each visit made by an individual to assist a disabled consumer in their home must be tracked through an electronic method starting January 1, 2020.
For many disabled people who receive assistance in their home, EVV has been a part of their daily life due to local regulation or home care agency policy. Now, all people with disabilities and older Americans who require in-home assistance will be subjected to some form of electronic monitoring.
As a power wheelchair user with non-invasive ventilation needs, my daily independence relies upon a small staff of employees called personal care assistants (PCAs) coming into my home to lift me out of bed, bathe and dress me, cook my meals, clean my home, wash my laundry, drive my vehicle, and assist at night with operating my ventilator and turning my body to keep my skin healthy from pressure sores.
Since 1997, I have hired my own PCAs through the consumer-directed service model. I train my staff how to help me. I manage their work schedules. I supervise the work they complete. I sign off on all timesheets. I submit timesheets to a third-party responsible for payroll processing called a fiscal intermediary (FI). And, when necessary, I have the difficult task of firing individuals. As a consumer in this model, I am the legal employer. Navigating these work relationships in a very intimate environment is difficult yet a right my community fought for and one I will never willfully give away.
In contrast to the consumer-directed model is the traditional home care agency model. Private agencies hire individual caregivers. The agency is the legal employer. The disabled consumer in a traditional home care agency model is considered a patient or client. The agency schedules when an employee works and with which patient the employee will visit that day. The patient has no choice regarding who enters their home, when they arrive or leave, the manner in which assistance is provided, or how they are trained. The patient or client is not responsible for supervising or documenting hours worked by the employee via timesheets.
Medicaid is a federal healthcare program that is administered at the state level. Each state must provide a minimum level of Medicaid services as mandated by the federal government. However, states have the right to offer more services or offer the services in a different manner, such as through HCBS (home and community-based services) waivers. This is why the Medicaid program looks different state to state, but at its core provides similar assistance. Medicaid services are paid partially through federal funds and partially through state funds.
States that do not implement EVV by the deadline will lose a percentage of their federal Medicaid funds. Since Medicaid is a large program, these cuts can mean millions of dollars per year lost for one state. With very little time remaining for implementation, states are scrambling to quickly select and implement a model and EVV system.
There are a few different models a state may choose. Most models fall into the following categories:
State Choice Model. The state Medicaid department selects one or two approved vendors and/or systems. There is often no cost to providers to implement the state-run system. Under this model, the Cures Act will provide states some reimbursement for the costs of EVV systems. This is called a closed model.
Managed Care Model. These is most common in states where Medicaid operations have been privatized without use of a third-party fiscal management agency. Managed Care Organizations (MCOs) are responsible for choosing vendors and EVV system(s) that their enrolled beneficiaries (the consumers) must use. This is also a form of a closed model.
Provider Choice Model. The state does not become involved with decision-making processes. Each home care agency provider or fiscal intermediary must choose a vendor and select their own EVV system(s). Home care agency providers and fiscal intermediaries must fund 100% of their own EVV systems. This is called an open model.
Open Vendor Model. The state selects a single vendor and EVV system(s), while simultaneously allowing home care agency providers and MCOs to continue using existing EVV systems. This is often referred to as a hybrid open model.
It seems simple enough. The state chooses a model. The state or provider chooses an electronic visit verification system. The consumer and employee use EVV to track their visits. So, what’s the big deal?
Once a model is chosen by the state, the responsible agencies must enter into contracts with EVV vendors that create and sell different types of EVV systems. These vendors were the primary authors and lobbyists of the electronic visit verification mandate found in the Cures Act. They are uniquely positioned to make billions of dollars selling their EVV products to states.
Up to now, vendors have done a decent job controlling much of the conversation related to how states must meet the Cures Act requirements. Their resounding message is that consumers and employees commit fraud on such a regular basis that only the most intrusive EVV systems will protect a state. They promote the usage of EVV systems that can include geolocation tracking, geofencing (an imaginary perimeter is placed around the home address whereby all uses of the EVV system that occur outside of the area will be denied payment), biometric data collection, cameras and even audio recording. It shouldn’t be surprising that selection of these intrusive components cost more than systems without these features.
Vendors have even organized together into their own National Electronic Visit Verification Association (NEVVA) with a stated mission to serve “as the single source for Electronic Visit Verification industry-related information for states, managed care organizations and providers.”
Creation of NEVVA occurred partially in response to the disability community and advocate actions. In 2017, myself and an advocate from Ohio, Alicia Hopkins, formed a national grassroots campaign called Stop EVV with a mission to educate the public on the dangers of intrusive EVV system components. Early 2018, the National Council on Independent Living (NCIL) announced that they were creating an EVV Task Force and later released a Statement on EVV Principles and Goals. ADAPT activists quickly joined the fight, echoing consumer concerns and rallying at Congresswoman Diana DeGette’s Colorado office.
Consumers in both California and New York became vocal about the impact of EVV on consumer-directed programs. New York consumers produced recommendations on system choice for implementation in their state. In California, two domestic worker labor unions SEIU Local 2015 and United Domestic Workers (UDW) joined consumer voices to speak out against use of EVV.
Advocates helped pass a delay bill last summer that moved the EVV implementation deadline from 2019 to 2020. The delay bill also strengthened language to ensure the Centers for Medicare and Medicaid Services (CMS), the federal agency charged with writing guidelines and overseeing Medicaid programs, have a more robust stakeholder engagement process.
By now, most people are aware that the Cures Act requires EVV systems to capture six pieces of information: the type of service provided (home health care service or personal care service); the person receiving the service (consumer); the person providing the service (employee); the date of the service; the location where the service was provided; and the time the service begins and ends.
What isn’t often discussed are other requirements dictated in federal law. In addition to the information collected by EVV systems, the state is also mandated to:
- Consult with stakeholders, which includes consumers, designated representatives and employees completing the work in addition to EVV vendors;
- Select EVV systems that are “minimally burdensome”;
- “Take into account existing best practices”;
- Choose systems “conducted in accordance with HIPAA”; and
- “Ensure that individuals who furnish personal care services are provided the opportunity for training.”
It must be carefully noted that the disability community and national organizations that represent us have written best practices and have recommended use of specific EVV systems that are minimally burdensome on the majority of consumers.
California activists and the California Department of Social Services (CDSS) used a collaborative process for system selection. Their side-by-side efforts yielded a one of a kind web portal EVV system. While the EVV web portal is not without issues, most consumers and employees feel it is a form of EVV they can live with and use each week. Every disability organization that has voiced a recommendation on system choice has upheld a web portal as the primary form of EVV states should choose.
It is not a surprise that NEVVA is attempting to stake claim to best practices in the home care industry via their mission statement. They are eager to ensure states adhere to their set of best practices and then purchase their expensive products. Standard EVV systems these vendors offer make it clear that they have no idea how home care services actually operate on a day-to-day basis or the realities faced on the ground. One does not need to look any further than the most common EVV systems on the market as evidence that vendors are disconnected from the disability community.
Vendors, who have a desire to sell their most costly products and not create new EVV systems, have successfully spread misinformation about EVV requirements. Some states, fiscal intermediaries and even consumers themselves falsely believe EVV looks like a few different system options, all with geolocation tracking or biometric data collection.
Geolocation tracking (GPS) is not a requirement of EVV. This was clarified by CMS in their 2018 Frequently Asked Questions document. GPS is only one way to capture the location requirement. Similarly, geofencing – which prohibits consumers and their employees from starting or ending a shift more than a certain distance from the consumer’s home – is not required. This technology actually harms consumers. For a community that has historically been isolated from public spaces, and still continues to fight for access, geofencing forces disabled people to remain home bound against their will.
Biometric data collection is also not a requirement of EVV. Biometrics are the use of technology such as fingerprinting, facial recognition and voice recognition software. These components work by requiring photographs and audio recordings from your private life.
Furthermore, nowhere in federal law or CMS guidance is EVV required to be a contemporaneous system. That means that clock-in and clock-out does not need to be at the moment it actually occurs. You can report out the schedule worked at any point in time before the pay period ends, so long as you use an electronic method, and still be in compliance with the Cures Act.
Whether it’s telephony visit verification, mobile apps, standalone mobile devices (like those being used in Ohio), fixed visit verification or a web portal created by the EVV industry, all of these systems require the consumer and employee to be physically together and capable of authorizing services at the same time. Many home care services can be provided without the consumer and employee being together, such as errands, meal preparation, laundry and housekeeping services.
For example, my PCAs drive me to a destination where I don’t need their help (perhaps I’m meeting family or friends, or I’m at a work function). I direct them to return to my home without me. There, they prep dinner or wash my laundry. While I’m not physically with them, they’re completing tasks on my plan of care that are eligible for payment. When the tasks are complete, my PCA sends me a text message. I can check the time they claim they are done by reviewing the security camera I installed in my home.
All of the above standard EVV systems also demand consumers and/or employees pay costs associated with their use. All of these systems ignore the very real issues faced by individuals in rural communities without Internet or phone access. All of these systems remove the rights of supervisor, and sometimes scheduling, away from the consumer. All of these systems bring into question data security during transmission and storage of information. Who has access to the data regarding our whereabouts? What are they doing with that data?
And, lastly, all of these systems created by the EVV vendor industry wholly ignore the independent living philosophy upon which all disability policies and programming are built – Nothing About Us Without Us!
Consumers and employees alike remain extremely concerned about electronic visit verification. Most of these systems violate Constitutional rights to privacy. There exists a severe nationwide home care worker shortage. It is almost impossible to find consistent care in many areas of the country. Electronic visit verification has already pushed many employees out of the home care industry, as they are able to find better paying jobs that don’t require them to sacrifice their privacy rights.
Moreover, EVV systems erode the intent of consumer-directed services, walking us back in time 40 years where disabled people are no longer in control of their private lives. Without consumer-directed services or adequate home care employees to assist us in our homes, many disabled people will have no other option than to be placed in a nursing home. This is the antithesis of the spirit of independent living and would violate the Supreme Court Olmstead decision, which requires states to offer services in a home and community-based setting when they also provide nursing home care.
If vendors and states want EVV to succeed, they must start honestly listening to the community these products are serving. California is the current standard of robust stakeholder engagement. The State has promised to never use GPS or biometrics. Their web portal collects location and start and end times in the broadest interpretation of the law possible.
Collaboration between consumers and vendors doesn’t seem to be happening anytime soon, however, as the EVV industry continues to prioritize profits via fear mongering.
Most advocates around the nation are looking to Congresswoman DeGette as a beacon of hope that disabled Americans will be given the respect and autonomy afforded to every other citizen. While the details of the promised DeGette bill remain unclear, advocates are pushing for full repeal, consumer-directed service carve outs, prohibition of GPS and geofencing, and/or prohibition of biometrics.
Right now, more than ever, we need the disability community to move to action. It’s time to loudly speak out against electronic visit verification. There are a few ways you can do that:
- Any EVV bill will first go to the House Energy and Commerce Committee. Contact those House members to urge them to work with DeGette in drafting a federal bill to change EVV. We especially need bi-partisan support.
- Find local EVV stakeholder meetings. Advocate at your state level for the least intrusive EVV system. Hold your state and/or fiscal intermediary responsible to including you in all conversations about EVV by letting CMS know when your right to a stakeholder engagement process has been violated. You can contact CMS via email: EVV@cms.hhs.gov
- Join our national Facebook group Citizens Against EVV for updates. If you’re a disabled person or a home care employee, check out our private Facebook group Help Stop Electronic Visit Verification! as we support one another through the challenges of living under surveillance.
- Stay informed! Review state updates on EVV implementation in your area.
Whatever may come to pass, the disability community is clear: We refuse to be treated as patients in our own homes.
My house is not an outpatient hospital or nursing home. There is never a reason for the government or their vendor to have access to the private dealings of my life solely to prove I am disabled and in need of assistance. The very fact that I’m alive today to write this piece means my employees arrived to their shifts and completed the tasks with which I needed help for the day. And I’m completely capable of continuing to verify that my employees perform the work I direct them to do.
These are my own opinions and are not provided on behalf of nor meant to be a representation of any organization with which I am affiliated.
Kendra Scalia, M.P.P. is a disability and healthcare policy analyst. She received her undergraduate degree in History and Political Science (St. Rose, ’04) and a Master’s degree in Public Policy (UC Berkeley, ’07). Kendra is the Chief Executive Officer at Pax Ratio, Inc., a disability and healthcare policy consulting firm. Her areas of expertise include Medicare, Medicaid, consumer-directed services, electronic visit verification, Americans with Disabilities Act compliance, and emergency management for individuals with access and functional needs. Kendra also serves as the Director of Policy at Stop EVV; as Co-Chair of the National Council on Independent Living (NCIL) EVV Task Force and Steering Committee; as Board Secretary with NMD United, Inc., a peer-led 501(c)3 non-profit organization serving adults living with neuromuscular disabilities; and as a Consumer Board Member with the Consumer Directed Personal Assistance Association of New York State (CDPAANYS).