DOH Extends Deadline for Fiscal Intermediary Authorization Application to Dec. 15

Notice of Extension.  The New York State Department of Health (DOH) has extended the deadline from November 30 to close of business on December 15, 2017 for currently operating Fiscal Intermediaries under the Consumer Directed Personal Assistance Program (CDPAP) to submit their Applications for Fiscal Intermediary Authorization.

Currently operating Fiscal Intermediaries must now submit the Authorization Application by December 15 or cease operations immediately. Those who are not yet a Fiscal Intermediary but wish to become one should also submit their Authorization Application by December 15 in order to be among those first to be reviewed.

FAQs Issued. Also today, the DOH issued FAQs addressing the Authorization Application. These FAQs can be found at:

https://hca-nys.org/wp-content/uploads/2017/11/Consumer-Directed-FI-Authorization-FAQs-11-28-17.pdf 

The FAQs answer questions raised after the Authorization Application was issued, as follows:

  1. You must obtain your FI Authorization from DOH before you request a Medicaid Provider Identification number, and the Medicaid number for your FI must be separate from any LHCSA Medicaid number.
  2. You can submit an Authorization Application that is not totally complete to comply with the December 15 deadline, as long as you exercised due diligence to submit an application that was as complete as possible. This implies that you will be able to supplement your application. However, the thoroughness of your application will set the timeline for its review.
  3. As requested in the October 2017 Medicaid Update, (although not specifically requested in the Authorization Application), you are required to submit your marketing and outreach materials in pdf format, and any videos and audio segments in their original format, if they cannot be altered to pdf.
  4. DOH will use the CDPAP statute’s and regulations’ parameters in reviewing your marketing and outreach materials to determine whether they comply with the roles and responsibilities assigned to FIs and consumers.
  5. If you fail to submit your Authorization Application by December 15, your FI is deemed out of compliance with the CDPAP statute, is not authorized to operate as an FI, and is subject to contract termination protocols of your MCOs. However, the additional sentence, “Until the Department receives the Authorization application, the FI will remain out of compliance,” raises the question of whether a late filing can be cured and what the ramifications of a late filing will be to an FI.
  6. All Board members must sign the written resolution authorizing the application’s submission.
  7. Submit the Survey or other mechanism you intend to use to obtain input from consumers and other interested parties; if not available, indicate what you intend to develop to meet this requirement.

FordHarrison LLP advises and counsels Fiscal Intermediaries under CDPAP and home care agencies on all labor, employment and benefit issues. If you have any questions regarding this Legal Alert or would like our advice about particular facts and circumstances at your agency, please contact the author, Stephen Zweig, szweig@fordharrison.com or (212) 453-5900, or contact any of the other attorneys of the firm’s Homecare Industry Law Group in its New York City office. Also, please visit our blog at homecareemploymentlaw.com for additional developments and information.

DOH Reverses Position on Overtime Pay Under The Wage Parity Act

Executive Summary: On November 2, 2015, the NYS Department of Health (“DOH”) issued important notices affecting the wage and overtime obligations of New York City and Nassau, Suffolk, and Westchester County home care agencies. In addition to setting Total Compensation under the Wage Parity Act for March 1, 2016 – February 28, 2017, the DOH reversed its existing position that overtime pay does not reduce the additional and supplemental wage package due on each episode of care hour worked under the Wage Parity Act. This reversal of position has major ramifications for the home care industry in downstate New York.

What was the DOH’s position on overtime? Until issuance of Dear Administrator Letters (“DALs”) titled “Official Notice of Home Care Worker Wage Parity Minimum Rate of Total Compensation,” on November 2, 2015, the DOH had said that, “(o)vertime was not included in the Total Compensation rate of $14.09″ under the Wage Parity Act.” (FAQ No. 7, Home Care Worker Wage Parity FAQs May 2014). Under that interpretation, an agency servicing a WPA covered case in New York City was obligated to pay overtime wages for all hours over 40 in a workweek PLUS an additional wage and benefit package of $4.09 (the “$4.09 Package”). On and after the effective date of the U.S. Department of Labor’s “Final Rule,” October 13, 2015, this meant that an overtime episode-of-care hour under the WPA had a labor cost of $15 in wages and $4.09 Package, for a total cost of $19.09.

What is the DOH’s new position on overtime? Each of the Notices issued by the DOH on November 2, 2015, one for New York City and one for Nassau, Suffolk, and Westchester County home care agencies, expressly state that “FAQ number 7 is superseded by this notice.” The Notices state further:

The Overtime premium pay (1/2 times the workers “regular rate of pay”) that employers are required to pay for overtime hours under state and federal minimum wage laws may be used to satisfy the Total Compensation required under the wage parity law. (emphasis added)

This means, says the DOH, that “if the Total compensation rate is $14.09, then the requirement to pay or prove $14.09 is fully satisfied by payment of $15, for that same hour of overtime.” No longer must an agency servicing a WPA case in New York City pay the $4.09 Package on top of $15.00 for an overtime hour.

What questions does this raise for home care agencies?

  1. If the actual cost to an agency for a WPA covered overtime hour as compared to a non-overtime hour has effectively been reduced to $15 per hour, instead of $19.09 per hour, will this reduction in the overtime premium to $.91 be given more weight in deciding whether to provide a worker with overtime hours in order to retain that worker and worker’s client and greater priority to “continuity of care” concerns?
  2. If the DOH’s “Notice Regarding Overtime Pay under Wage Parity,” is, as written, “provided to clarify the extent to which overtime can be used to satisfy the Total Compensation requirements for a given hour of overtime” is this clarification effective retroactively?
  3. If a home care agency has already paid WPA covered overtime hours at $19.09 per hour, is there any recourse or future reduction in WPA $4.09 Package obligations available to that agency?

If you have any questions regarding this Alert or would like our advice of your home care agency’s particular facts and circumstances, please contact our Home Care Group members, Stephen Zweig, Philip Davidoff or Eric Su in FordHarrison’s New York City office at (212) 453-5900, or the FordHarrison attorney with whom you usually work.