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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.

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Compensating Aides for 24-Hour Cases: The Latest

On August 15, 2017, the Appellate Division, First Department, which had earlier held that 24-hour “sleep-in” aides must be paid for all 24 hours, denied a motion to reargue or further appeal its decision to the New York Court of Appeals, New York’s highest court. Though significant, it is unlikely that this will be the last word on this issue.

Recent History. For several years, federal and state courts in New York have grappled with the issue of compensating home health aides for 24-hour “live-in” or “sleep-in” shifts under New York Labor Law.

Beginning in 2012 with Severin v. Project OHR, and continuing as recently as May 2017 with the Bonn-Wittingham v. Project OHR case, United States District Courts in New York have said that 24-hour shift workers who are afforded eight hours of sleep time (at least five hours of which are uninterrupted) and three hours for meals may be paid for 13 work hours. The New York Department of Labor has long maintained that this approach is consistent with the New York Labor Law.

In contrast, beginning in 2014 with Andryeyeva v. New York Health Care, Inc., and as recently as 2017 with Tokhtaman v. Human Care, LLC, state courts have rejected the NYDOL’s opinion and the deference provided to that opinion by the federal courts, holding that aides working 24-hour shifts must be paid for 24 hours. One notable exception in New York State courts is Moreno v. Future Care Health Servs., Inc., in which the Kings County Supreme Court found similarly to the federal courts.

As these cases have made their way through the courts, the split between the federal and state courts has deepened. So where do the cases presently stand?

NYS Courts. In April 2017, in the first appellate-level decision to address the issue, the Appellate Division, First Department, covering Manhattan and the Bronx, upheld a lower court’s decision in Tokhtaman v. Human Care, LLC, requiring aides to be paid for 24 hours. On August 15, 2017, the Appellate Division, First Department denied the agency’s motion to reargue and also refused to permit it to appeal to the New York Court of Appeals.

Tokhtaman was decided was decided by the Appellate Division, First Department less than one year after its initial filing in the lower court. Contrast this with the Andryeyeva case. The complaint in Andryeyeva was filed nearly seven years ago. The supreme court’s decision concluding that sleep-in aides were entitled to 24 hours’ pay for 24-hour shifts was issued in September 2014 and was promptly appealed. The appeal has since then been pending before the Appellate Division, Second Department, covering Kings, Queens, Richmond, Westchester, Nassau and Suffolk counties. Oral argument in the Andryeyeva appeal and the Moreno appeal was held in tandem in January 2017. To date, no decisions have been reached.

Federal Courts. While the Andryeveva appeal has been pending in state court, another federal court has waded into the controversy. In December 2016, the United States District Court for the Eastern District of New York in Bonn-Wittingham v. Project OHR agreed with the analysis of the Severin court and deferred to the NYDOL’s opinion regarding payment of 13 hours to 24-hour shift aides. In May 2017, Plaintiffs brought to the Court’s attention the Appellate Division, First Department’s decision in Tokhtaman, arguing that it represented a change in the controlling law on the issue and that the Court’s earlier decision applying the NYDOL’s 13–hour Rule should be revisited.

The Court promptly, and quite pointedly, rejected Plaintiffs’ position. The Court noted that the Appellate Division, First Department is a “state intermediate court” whose decisions are not “controlling.” Furthermore, the Court said that the New York Court of Appeals “is not likely to follow Tokhtaman” because the NYDOL’s interpretation of NYLL is “entitled to deference” by the Courts, particularly where, as here, the NYDOL’s interpretation does not conflict with the law and is otherwise reasonable. Notably, the Court cited the Moreno decision in support of its rejection of Tokhtaman.

Conclusion. The Appellate Division. First Department’s Tokhtaman decisions have decided for now the issue of pay for 24-hour shift home care workers who work within its jurisdiction (i.e., Manhattan and the Bronx). By refusing to allow an appeal of its decision to the New York Court of Appeals, the Appellate Division, First Department has heightened concern and interest in the pending Andryeyeva appeal in the Appellate Division, Second Department. If the Appellate Division, Second Department holds differently in Andryeyeva, aligning with the federal courts, it would have a significant impact and almost certainly set the stage for the issue to be decided by the New York State Court of Appeals.