FLSA - Home Care Wage Rule Updates
U.S. Department of Labor (DOL) -
The U.S. Department of Labor (DOL) could officially begin enforcement of its rule guaranteeing overtime and minimum wage protections for home care workers, but numerous questions still exist when it comes to implementation, especially how to fund this mandate.
"From November 12, 2015 through December 31, 2015, the DOL will exercise “prosecutorial discretion” in determining whether to bring enforcement actions, with particular consideration given to the extent to which States and other entities have made good faith efforts to bring their home care programs into compliance with the FLSA since the promulgation of the Final Rule," writes David Weil, administrator of the DOL Wage and Hour Division. How any enforcement will unfold remains unclear.
NYS Department of Health -
On Nov. 9th the Department of Health (DOH) posted a Dear Colleague Letter informing providers and plans regarding the recent Federal Fair Labors Standards Act (FLSA) court decision impacting overtime (OT), travel time and live-in rules and the steps DOH will take to modify Medicaid reimbursement rates to ensure compliance.
LeadingAge New York, along with other home care associations, has sent members a survey asking for details on the fiscal impact of implementing the FLSA. This is the second year that LeadingAge NY has sent this FLSA survey. We are seeking additional funding from Medicaid to cover the added costs stemming from these new standards. DOH is also conducting its own survey of managed care plans and fee-for-service providers to ascertain the fiscal impact. They have also sent out an additional survey to gauge compliance with MLTC Policy 14:08 - Paying for Live-In 24 Hour Care for Personal Care Services and Consumer Directed Personal Assistance Services.
As per the letter, “DOH expects the survey process and subsequent analysis could take up to two to three months to complete. Therefore, the Department has decided to expedite rate relief to fee-for service home care programs and managed care plans retroactive to October 13, 2015 based on the latest available utilization information. DOH has decided to apply the home care industry standard that 10% of total hours worked are associated with overtime. It will also include additional funding for the new FLSA employee travel and live-in requirements noted above. The total per hour adjustment is estimated to be an increase of $0.34/hour across all aide hours. The Department will monitor the effect of this additional funding and expects the increase to be passed on to the worker and/or agency as appropriate.”
DOH has stated they will be submitting managed care rate adjustments to the Centers for Medicare and Medicaid Services (CMS) for approval retroactive to October 13, 2015. According to the letter, “to expedite funding into the rates, DOH intends to advance State share only payments to managed care plans which will be distributed as lump sum amounts by December 2015. For fee-for-service rates, the per hour amount will be factored into rate adjustments, retroactive to October 13, 2015, to be developed under the existing rate setting methodologies; with payments anticipated in January 2016. Both the managed care and fee for service payments are designed to provide funding for home care providers to meet their initial obligations under the Federal Final Rule.”
LeadingAge NY continues to pursue adequate funding and clarification of the process. We will keep members posted on any further guidance from DOH and any additional information from our meeting with DOH.
Contact: Cheryl Udell, cudell@leadingageny.org, 518-867-8871