Author: Emina

NY Now Requires Electronic Distribution of Mandatory Workplace Posters

Posted on | by Emina

Effective December 16, 2022, Labor Law Section 201 was amended to require New York employers to provide employee rights notices electronically.  Traditionally, employers satisfied their workplace notice posting requirements by physically posting government-issued posters in the workplace, often on bulletin boards or pre-printed posters. However, with this amendment of the Labor Law, employers are now required to provide these notices either by email or through the employer’s website, in addition to continuing to post the notices in any physical work location.  Employers are also required to notify employees that the employee workplace notices are available electronically.

This change to Section 201 of the Labor Law was sloppy, creating a number of practical challenges for already over-regulated New York employers.  For example, for employers who do not maintain a website or who do not communicate with employees through email, does the law require them to now create an electronic communication system with those employees?  The law specifically states that digital copies of the notices must be provided on a website or email, seemingly prohibiting the distribution of these notices via text messages.   

Separately, the law amended a New York Labor Law section discussing notices required by the New York Commissioner of Labor, thereby suggesting that only those notices required by the State’s Commissioner of Labor would have to be electronically distributed.  However, the new language in the law states that “all other documents required to be physically posted at a worksite pursuant to a state or federal law or regulation” must also be made electronically available.  This seems to suggest that non-employment type posters and/or those issued by the federal government would also be subject to this new electronic-distribution requirement. 

Lastly, while the law is effective immediately, it is not clear whether employers are required to implement this law for their current staff, or only apply the new requirements to new hires.  If it is the former, the new law creates a time-sensitive urgency for employers to act.

We will be reaching out to the Department of Labor to clarify these requirements.  In the meantime, employers should start considering how to comply with the new law, which is in effect.  For some employers, the law’s requirement of distributing workplace notices electronically will be simple to administer.  However, for other employers, such as those in the home care industry, the requirement may prove difficult to effectuate.  Failure to satisfy the electronic notice posting requirement could result in monetary fines.  In addition, non-compliance could be used as evidence against an employer in connection with allegations of other workplace violations.

New Legislation Protecting Employee Absences is Passed into Law

Posted on | by Emina

Several days ago, Governor Hochul signed into law Bill A8092B (the “lawful absence law”), which amends Section 215 of the New York Labor Law (NYLL), to prohibit employers from disciplining employees who take legally protected time off from work.  Thus, employers cannot threaten, penalize, discipline, fire, or otherwise discriminate or retaliate against employees for their use of lawful absences. Additionally, employers cannot maintain “no fault” attendance policies and absence control procedures, which may penalize workers for their use of legally protected absences.

The definition of a “lawful” absence to the layperson, such as a department manager or even a human resources officer, will not always be clear. The law does not define what constitutes a “legally protected absence pursuant to federal, local, or state law.”  At the very least, the language should be interpreted to include all New York State, New York City, and federal statutory leave laws, such as the New York Paid Family Leave, New York Paid Sick Leave, New York Vaccine Leave, New York Paid COVID-19 Leave, New York City Safe and Sick Leave, the Family and Medical Leave Act, the Americans with Disabilities Act, Worker’s Compensation, and other various leaves, such as jury duty leave, voting leave, domestic violence leave, and military leave. However, the application of these leave laws is not always clear.  For instance, an employee calling off from work due to a suspected case of the flu, or long COVID complications, could argue that their leave was protected under the New York Human Rights Law, which defines disability and impairment extremely broadly, but the unsuspecting manager would not realize that such an absence was potentially “lawful” and could impose discipline.  Thus, in application, these amendments to Section 215 could prove difficult to administer for employers.

Whereas before, adverse employment action against an employee who might have taken time off for protected reasons was “punishable” under the law that protected the employee’s leave (e.g., employee who was disciplined for using FMLA leave would sue under the FMLA), now, with these Section 215 amendments slated to take effect, employees will have additional remedies at their disposal. Specifically, Section 215 provides a private cause of action for current and former employees, allowing them to initiate a lawsuit to recover monetary damages from their employer. Further, employers that violate Section 215 may be required by the State Department of Labor to provide reinstatement and pay individuals for damages associated with violations of Section 215, including liquidated damages, back pay and front pay. The Department of Labor can also issue up to $10,000 in civil penalties to first-time violators of Section 215 and up to $20,000 for all subsequent violations.

The amendments to Section 215 of the NYLL take effect on February 19, 2023. Employers should take the time now to ensure their call-off and attendance policies and procedures can accommodate the new mandates and protections under Section 215.

DOH has taken Steps to Address Healthcare Worker Bonus Portal Challenges for LHCSAs

Posted on | by Emina

The Healthcare Worker Bonus Portal (the “Portal”) is not accessible to LHCSAs that have a “non-billing” provider number, the MMIS.  LHCSAs that only bill managed care and not Medicaid directly might have been assigned a MMIS that is a “non-billing provider” MMIS. Unfortunately, this non-billing MMIS precludes the LHCSA from accessing the Portal and  processing requests for the healthcare worker bonus.

Today, however, the Department of Health (“DOH”) sent a notification to providers, requesting that they complete a survey. The survey will create a process for these LHCSAs – who otherwise meet the requirements for the healthcare worker bonus program – to register their employees for the bonus.  Only employers who are eligible but not currently registered for the bonus program should complete this survey, which was sent through eMedNY. The survey is only available until December 6, 2022. Following the close of the survey on December 6, 2022, DOH will provide additional information regarding the bonus program registration procedures. Providers are reminded that they are required to “register” their eligible employees for the bonus program and could be investigated by OMIG if they fail to do so. Thus, all providers that have been unable to complete the portal registration to date should take steps to respond to this survey and pursue the bonus for their employees.

DOH Updates Return-to-Work Protocols for Healthcare Personnel  

Posted on | by Emina

The State Department of Health (DOH) has updated its guidelines on return-to-work protocols for healthcare personnel (HCP) with COVID-19 infection or exposure. The guidelines supersede the most recent guidance from the DOH, which had been issued on February 4, 2022 and point providers to the CDC’s guidelines, which are available here and here. 

The CDC guidelines provide that, generally, asymptomatic HCP who have had a higher-risk exposure do not require work restriction, regardless of vaccination status, if they do not develop symptoms or test positive for SARS-CoV-2. 

For HCP that have tested positive for COVID, rights to time off from work depend on the staffing levels of the health care provider.  If the provider’s staffing levels are so low that the provider is in a “crisis” mode (and crisis mode must be reported to the DOH), then the provider has to follow certain standards when staffing cases with staff who are reporting COVID-positive results. See the CDC guidelines here. In our experience, very few agencies have acknowledged that they are in crisis mode, and even fewer have reported the same to the Department.

For healthcare providers that are in the “contingency capacity” mode, the following rules apply for employees that test positive for COVID:

HCP with mild to moderate illness who are not moderately to severely immunocompromised can return to work when:

  1. At least 5 days have passed since symptoms first appeared (day 0), and
  2. At least 24 hours have passed since last fever without the use of fever-reducing medications, and
  3. Symptoms (e.g., cough, shortness of breath) have improved.

HCP who were asymptomatic throughout their infection and are not moderately to severely immunocompromised may return to work when at least 5 days have passed since the date of their first positive viral test (day 0).

Providers are reminded that COVID sick pay is still in effect and employees must be paid for the time that they are not permitted to work due to COVID. Further, such paid time off cannot be deducted from the employees’ PTO/sick time accruals. Rather, the COVID sick leave is an employer-funded separate “bank” of paid time off to which employees may be entitled.

NY CDPAP RFO Moves Forward

Posted on | by Emina

This afternoon, the New York State Department of Health released attestation forms and supporting information forms for fiscal intermediaries that had applied for the CDPAP RFO but which had not previously been selected as lead fiscal intermediaries. As home care insiders will recall, there was a first round of CDPAP RFO awardees (68 agencies in total) announced by New York State Department of Health in February 2021.  However, due to subsequent changes in the law, the Department re-opened the RFO to additional fiscal intermediaries that had applied for the RFO but did not “win” an award in the first round. This “second” round of RFO contracts is intended for fiscal intermediaries that met certain patient census requirements during the first quarter of 2020.  Today’s forms were issued in furtherance of this second round of awardees, to invite them to submit information to New York State and demonstrate that they meet the patient census requirements that are necessary to receive a lead fiscal intermediary RFO award.

As we had reported previously, based on the changes made in the law, fiscal intermediaries that actually applied and that were not awarded by the New York State Department of Health within the first round of awards, are still eligible to receive a lead contract with New York State. To be clear, this second round of potential awards does not apply to any fiscal intermediary that did not apply for a RFO in 2020. Thus, entities who wish to become a fiscal intermediary now or that somehow began providing FI services since the RFO was submitted in March 2020 cannot utilize this process to become a lead fiscal intermediary.  

For the entities that did apply in 2020, but were not yet notified officially by the Department that they are a lead fiscal intermediary, such entities can still qualify as a lead fiscal intermediary if they can demonstrate that they had 200 or more consumers being serviced during the period of January 1, 2020 through March 31, 2020 in any or all of New York, Kings, Queens, Bronx, and Richmond counties. In the alternative, a fiscal intermediary could be awarded a contract as a lead if it demonstrates that it serviced 50 or more consumers in any other county of New York State during the same applicable Q1 2020 period.

The Department has issued a one-page attestation form for this “second slate” of fiscal intermediary applicants to complete, alongside with a template “attestation supporting information spreadsheet,” which also has to be completed. The supporting documentation must provide sufficient evidence to confirm that the fiscal intermediary indeed was serving the requisite number of consumers, on the requisite dates, and in the requisite counties, otherwise the entity will not qualify to receive the lead fiscal intermediary award from New York State.

The deadline to submit the attestation and supporting documentation is November 29, 2022. The State has also announced that the anticipated contract award date for all the lead fiscal intermediaries (inclusive of first and second “slate” awardees) is now January 15, 2023. After the lead contracts are awarded by the State, the non-lead fiscal intermediaries will be required to begin transitioning consumers to lead fiscal intermediaries.

If you have any questions about the CDPAP RFO process, please let us know.

DOH Postpones Wage Parity Certification Deadline

Posted on | by Emina

Today, the Department of Health announced that it would be postponing the wage parity certification deadlines once again.  As relevant to home care providers covered by the Wage Parity Law, LHCSAs and FIs are now required to submit completed LS300 forms by December 1, 2022. The LS300 form will be revised by the DOH before December 1, thus providers should not rush to sign the current LS300 version.

The LS301 requirement for an independently audited financial statement for calendar year 2021 has been further delayed. Statements for calendar years 2021 and 2022 are now due on October 1, 2023.

CHHAs and MLTCs are required to receive and review network providers’ LS300 forms by December 1, 2022.  The compliance date for CHHAs’ and MLTCs’ receipt and review of independently audited financial statements for the LS300 forms for calendar years 2021 and 2022 is October 1, 2023.

The Department’s announcement also makes clear that, going forward, the deadline for compliance and certification under the LS300 and LS301 requirements will be October 1 of each year.

Lastly, any LS300, LS301 or audited financial statements already submitted by LHCSAs or FIs prior to the Department’s guidance may be reviewed and considered completed for the 2022 year.  LHCSAs and FIs who have completed these requirements do not have to revise or resubmit to their contracted CHHAs, LTHHCPs or MCOs once revised forms or procedures are posted by the Department.

If you have any questions about this development, please let us know. 

NYS Issues Guidelines for LHCSA Ownership Changes and New LHCSA Establishment

Posted on | by Emina

Today, the New York State Department of Health released extensive information and GUIDELINES regarding changes of ownership for LHCSAs and applications for licensure. This guidance has been in the making since 2018, when the Public Health Law was amended to prohibit the Public Health and Health Planning Council from approving new LHCSA applications unless there was a “public need” for such a LHCSA, the character, competence and “standing in the community” of the LHCSA’s owners, directors, and other stakeholders was established, and the LHCSA demonstrated that it had financial resources to operate the agency. 

Today’s Dear Administrator Letter establishes that:

  1. The public need methodology will apply to all LHCSA applications submitted on or after April 1, 2020.
  2. The public need methodology includes a rebuttable presumption of no need for additional LHCSAs in a county if there are 5 or more LHCSAs actively serving patients within the county as of April 1, 2020. 
  3. A LHCSA applicant can overcome the presumption of no need based on local factors related to an applicant’s services or planning area, including, but not limited to:
  • the demographics and/or health status of the patients in the planning area or the State, as applicable; 
  • documented evidence of the unduplicated number of patients on waiting lists who are appropriate for and desire admission to a LHCSA, but who experience a long waiting time for placement; 
  • the number and capacity of currently operating LHCSAs; 
  • the quality of services provided by existing agencies; 
  • the availability and accessibility of workforce; 
  • personnel and resources dedicated to adding and training additional members of the workforce including committed resources in an organized training program; 
  • cultural competency of existing agencies; and, 
  • subpopulations requiring specialty services.

Applications for licensure based on change of ownership for LHCSAs actively serving at least 25 patients will not be subject to public need review and shall be evaluated only on financial feasibility and the character and competence of the proposed operator, unless the proposed operator seeks to serve patients outside of the agency’s approved counties. 

LHCSAs affiliated with an Assisted Living Program (ALP), Program of All-Inclusive Care for the Elderly (PACE), Nurse Family Partnership (NFP), or Continuing Care Retirement Community (CCRC) will be exempt from the public need methodology if the agency exclusively serves patients within those programs. 

All applications will be reviewed for character and competence. 

The DOH’s DAL also provided a link to a new application for licensure, available HERE, and FAQs, which can be accessed HERE

If you are considering a LHCSA acquisition or sale, or are in the process of a change of ownership, or if you have general questions about this development, please contact us.  

NYS Operationalizes the Healthcare Worker Bonus Program

Posted on | by Emina

Your Employees may be Eligible for a $3,000 One-Time Bonus, paid mostly by the federal Government

As we reported in our April alert, the New York State Budget established a healthcare worker bonus (the “Bonus”) program that would pay up to $3,000 to qualified healthcare workers that are employed by qualified providers. On August 3, the Department of Health notified providers through eMEdNY that the healthcare worker bonus program (“HWBP”) has been activated, and that a portal has been established through which providers would submit required information to apply for their employees’ bonuses. The Department’s website for the HWBP is generally robust, and available here. The information that is plainly on the website will not be repeated here. Instead, this alert will focus on some common outstanding questions that have not been addressed by the Department, as they relate to home care providers. Clearly, the HWBP was designed around the hospital and, a little less so, the nursing home setting. Thus, much of the Department’s guidance and interpretation of the HWBP does not translate easily to the home care context.

Initially, insofar as entity eligibility, we know that CHHAs and LHCSAs are covered by the HWBP. There is generally a requirement that the provider be enrolled in Medicaid, but some avenues for non-Medicaid providers also appear to exist. In addition, although not mentioned by the Department on its website, the HWBP law itself states that other Medicaid-billing providers may participate in the program, so long as “at least [20%] of the provider’s patients or persons served are eligible” for Medicaid services. Thus, this 20% threshold is relevant to providers who not only operate a home care program but may offer related healthcare services.  

Providers who rely on staffing agencies for healthcare labor cannot seek and obtain bonuses for those healthcare staff that is assigned by the staffing agency, as per the DOH’s FAQs (available here).

Fiscal Intermediaries are outright considered ineligible employers by the Department, per the DOH’s FAQs.

Separately, insofar as employee eligibility, we know that New York State has determined that direct care staff, such as HHAs and PCAs, are not eligible for the Bonus. In their FAQs, the State has explained that, due to the $2.00 minimum wage increase taking effect October 1, home care workers have, effectively, been rewarded sufficiently.  However, other clinical staff employed by home care agencies are eligible for the Bonus, such as nurses and therapists. It Is not clear if such clinical staff, to the extent they worked remotely (as they were authorized to do during the vesting period under various regulatory waivers), would be eligible for the Bonus. This question has not been addressed, but we know that there is an emphasis in the HWBP in rewarding “front line” workers.

In addition, it is not clear if other office staff, such as coordinators, HR intake, and compliance employees would qualify for the Bonus. In the DOH’s list of eligible employees, various clerical and clerk positions are identified as “other health care support workers” who would be eligible for the Bonus. The names of these titles suggest that they are hospital and nursing home-setting positions, where there would be some potential of front-line work and patient-facing responsibilities. It is unclear if this rationale extends to home care, where the office staff rarely, if ever, interacts directly with patients of home care services. This is a pivotal issue for LHCSAs and CHHAs. In our conversations with the DOH, we were not given an explanation or any guidance. Rather, the DOH suggested that providers begin the enrollment process on the portal and address these worker eligibility issues through the application process. 

Separately, another outstanding issue has to do with the salary cap of $125,000. The HWBP limits the Bonus to individuals whose annualized base salary is $125,000, excluding overtime and bonuses. However, it is not clear whether other compensation (such as shift differentials, vacation pay) can be considered as part of the base salary.

Insofar as taxes and payroll obligations, the DOH takes the position that the $3,000 bonus is not subject to New York personal income tax. There is no mention of federal income tax implications.  There is also no mention of unemployment insurance or workers’ compensation implications of the $3,000 payment. We have sought clarification of these items, since there is no reimbursement to covered employers for these ancillary related costs of paying a $3,000 bonus.

Lastly, the HWBP is a mandatory-participation program. Employers must submit claims and seek the Bonus for their eligible employees’ bonuses. Any employee who does not receive a bonus that they may be entitled to is directed to complain to OMIG’s Fraud Hotline. Thus, for any employer that might be overly frustrated by the lack of clarity, or potential payroll and overhead obligations of the HWBP, such employer does not have the option to waive participation.

We will be following up with the DOH on these outstanding issues, and others. In the meantime, if you have any questions about the program, please let us know.

Federal Court Decision Reinforces Wage and Hour Risks for Companies that Share Employees’ Services

Posted on | by Emina

In a recent federal court decision out of Pennsylvania, Walsh vs. Elder Resource Management, et. al., a judge determined after a bench trial that a home care provider, a related staffing firm, and their owners were joint employers and, thus, jointly responsible for underpaying home health aides that had split their time working for both the home care agency and the staffing company.  The judge in essence held that there was intentional scheduling and case splitting between the two companies, with the intent to deprive the employees of overtime. The two companies shared common ownership and coordinated operations, and the staffing company was not truly independent because it only existed to service the one commonly-owned home care entity. Thus, the Court found, instead of aggregating the total work hours across the two companies, the company’s practice of paying for work hours separately and independently by each company resulted in the aides not receiving earned overtime pay.

The U.S Department of Labor sued on behalf of the workers, and the Judge ordered the two companies and their owners to pay nearly $2.5 million in unpaid wages and liquidated damages.

Home care providers are under increasing pressure to control overtime costs while maintaining continuity of care for high-hour cases. MLTCs will urge the provider to have their aide hired and work for two separate home care agencies in order to service a single patient. Home care providers must be very careful of these arrangements, as this Pennsylvania court decision illustrates. Collusion between two employers in this manner, with the intent to deprive workers of overtime, is unlawful.  If you have any questions about this article or its implications, please contact us. 

New York State Proposes Changes to Medicaid Fraud, Waste and Abuse Prevention Programs and its Compliance Program Requirements 

Posted on | by Emina

The New York State Office of Medicaid Inspector General (OMIG) has proposed regulations (the “Regulations”) to revamp its provider compliance program and enforcement. The proposed regulations are in the State Register and address (a) provider compliance programs; (b) Medicaid managed care plan organization (MMCO) fraud, waste and abuse prevention programs; and (c) the reporting and returning of Medicaid overpayments to OMIG.

Provider Compliance Programs

The Regulations propose to repeal the current Provider Compliance Program regulatory requirements and replace them with a new Subpart 521-1, which imposes obligations on “required providers” to adopt and implement effective compliance programs. “Required providers” include LHCSAs, other Article 36 entities, as well as Article 28, 16 and 31 entities (including MLTCs) and any other entity for which Medicaid is a substantial portion of its business.  

Additionally, the Regulations include several new requirements that do not appear in existing regulations, including:

  • 10-year document retention requirements for managed care organizations (“MCOs”) and a 6-year document retention period for all other “required providers.”
  • All compliance program requirements expressly apply to the required providers’ contractors, agents, subcontractors, and independent contractors.
  • A new “risk area” — contractors, subcontractors, agents and independent contractor oversight – must be considered by all required providers, and a number of additional “risk areas” must also be considered by MCOs (including MLTCs).
  • Providers that are “required providers” must submit a compliance certification to each MCO for which they are a participating provider upon execution of the MMCO’s participating provider agreement and annually thereafter (and the submission method shall be described on the MCO’s website).
  • Required providers must comply with OMIG’s regulations regarding Medicaid overpayments.
  • Specifically enumerating the compliance officer’s duties, including his or her reporting structure. Notably, under the proposed regulations, the compliance officer is no longer required to be an “employee” of the covered provider.
  • Establish and implement an effective system for the routine monitoring and identification of compliance risks, including the types of audits the provider must undertake and the frequency of such audits.
  • Establish and maintain procedures for responding to and addressing compliance issues as they are raised.

MMCO Fraud, Waste and Abuse Programs

The Regulations – with respect to Medicaid fraud, waste, and abuse programs – would apply to all MLTCs, regardless of member enrollment, and further require the establishment of a dedicated full-time Special Investigation Unit (with details about staffing, reporting and work plan requirements) if the MCO has an enrolled population of 1,000 or more.

Some of the more significant requirements in proposed Subpart 521-2 that do not appear in existing regulations, include:

  • Audit and investigation requirements which include the scope of such audits and investigations and the general requirements for conducting such audits and investigations.
  • Obligations to report cases of fraud, waste and abuse to OMIG in accordance with the MMCO’s contract with the Department of Health.
  • Obligation to file a fraud, waste and abuse prevention plan with OMIG 

Medicaid Overpayments

The Regulations reinforce that covered providers or individuals must report, explain and return Medicaid overpayments to OMIG. The term “person” includes home care agencies, hospices and MCOs (including MLTCs and their contractors and participating providers) and virtually any other provider or supplier that is enrolled in the Medicaid program. A reportable incident (and the timeline for reporting the same) begins when the covered individual “has or should have through the exercise of reasonable diligence, determined that they received an overpayment and quantified the amount of the overpayment.”

Comment Period

The regulation will be subject to a 60-day public comment period. Providers who might have comments to the proposed regulations can reach out to our firm and request that comments be formally submitted to the State on their behalf.