The Department of Labor (DOL) published a Final Rule on October 1, 2013 extending minimum wage and overtime pay protections under the Fair Labor Standards Act (FLSA) to most home care workers (who may have job titles such as home health aide or personal care assistant) who provide essential assistance to people with disabilities and older adults. On August 21, 2015, the U.S. Court of Appeals for the D.C. Circuit issued a decision upholding the Final Rule. On Friday, September 18th from 2:00-3:00pm Eastern Time, senior leadership from the U.S. Department of Labor’s Wage and Hour Division and Office of the Solicitor will hold a webinar to discuss the Home Care Final Rule. Presenters will provide an overview of the Final Rule as well as the Department’s guidance regarding joint employment in domestic service employment under the FLSA and the application of the FLSA to shared living programs. Our comments will address questions we have received from states, including about the home care litigation.
TO REGISTER FOR THE WEBINAR:
Please click https://www.eventbrite.com/e/home-care-final-rule-implementation-webinar-for-states-registration-18538483102 to register for the webinar.
Once you register, you will receive an email with the information you need to access the webinar.
There will be a question and answer period after DOL’s presentation. If you would like to submit a question(s) in advance, please email it firstname.lastname@example.org at your earliest convenience. During the webinar, we will respond to as many questions as possible.
FOR MORE INFORMATION:
Information about the Home Care Final Rule is available athttp://www.dol.gov/whd/homecare/.
Information about the litigation related to the Home Care Final Rule is available at http://www.dol.gov/whd/homecare/litigation.htm.
U.S. Court of Appeals Unanimously Upholds DOL Home Care Rule
|Thank you for your engagement with the Department of Labor’s Wage and Hour Division regarding the Home Care Final Rule.On Friday, August 21, the U.S. Court of Appeals for the District of Columbia issued a unanimous decision upholding the Home Care Final Rule. DOL issued the statement below, which is available on our website at http://www.dol.gov/whd/homecare/litigation.htm
This site will be updated with any changes related to litigation, so please check back for updates.
Today’s decision from the U.S. Court of Appeals for the District of Columbia is vital to nearly two million home care workers, who will now qualify for minimum wage and overtime protections. The decision confirms this rule is legally sound. And just as important, the rule is the right thing to do — both for employees, whose demanding work merits these fundamental wage guarantees, and for recipients of services, who deserve a stable and professional workforce allowing them to remain in their homes and communities.
The DOL has led an unprecedented implementation program to help employers prepare for compliance, including offering an extensive and individualized technical assistance program, providing a 15-month period before the effective date to aid compliance, and adopting a time-limited non-enforcement policy. DOL has repeatedly encouraged states and other employers to take the necessary steps toward implementation. The Department continues to stand ready to provide technical assistance to states and other entities as they implement the Final Rule.
New Rates for July 1, 2015
APD announced that effective July 1, 2015, Personal Supports QH, Personal Supports Day, Support Coordination and CDC+ Consultant will all have an increased rate. Please see the link below for all the new rates. The changes to the cost plans and budgets will be made electronically and will not require the WSCs to redo any service authorizations and will not require the Regions to re-approve any service authorizations. That is the good news!
1) iBudget will be brought down on July 1st so the changes can be made. All FY 15-16 cost plans must be in approved status. Any cost plans that are in draft, or pending review status will have to be deleted by IT and any changes that have been made to those plans will be lost.
2) Please review all cost plans that are Pending Area Office Review for FY 15-16 and get them to approved status as soon as possible. If the reason for the pending review is due to a rejected service authorization that you are unable to resolve, complete a help desk ticket.
3) State Office staff will be reviewing any cost plans in Pending State Office Review to get them in approved status.
4) If support coordinators have consumers who currently have a FY 15-16 budget, however; they will not have a cost plan built prior to 7/1/15; the support coordinator will need to work with Region staff to get the budgets adjusted manually. Since those cost plans may or may not come for Region review, they will need to notify you who those consumers are.
5) Please encourage support coordinators to stop making any changes to cost plans after June 28, 2015 unless there is an emergency. This will give both the Region and State Office staff time to assist with getting all plans into approved status.
This is a follow up to the DOL emails we sent earlier today. After consideration of the parties’ pleadings, the arguments of counsel and relevant law, and the entire record in this case, plaintiffs’ motion for a partial summary judgment is GRANTED, defendants motion is DENIED, and the Department of Labor’s Third Party Employer regulation scheduled to go into effect on Jan 1, is VACATED. See below for a summary on the decision.
The United States District Court for the District of Columbia has today issued a partial summary judgment on two pieces of a lawsuit filed by the Home Care Association of America and other plaintiffs related to the Department of Labor’s Home Care Rule. Please note that this information is not legal advice, and is shared after a swift and preliminary review of the decision.
The decision notes that after consideration of the parties’ pleadings, the arguments of counsel and relevant law, and the entire record in this case, plaintiffs’ motion for a partial summary judgment is GRANTED, defendants motion is DENIED and the Departments Third Party Employer regulation scheduled to go into effect on Jan 1, is VACATED.
The largest area implicated by this decision is the third party employer regulation, which withdrew the availability of the companionship and live-in caregiver exemptions from third parties.
As you know, the companionship exemption was impacted in two important ways by the Home Care rule. First, the rule established that the companionship services exemption is not applicable when the employee spends more than 20 percent of his or her workweek performing care services. This portion of the regulation is NOT impacted by this decision, so the companionship exemption is available only when this percentage test is met.
Second, the rule set forth that the companionship exemption is not available to third party employers. This portion of the rule, called the Third Party Employer regulation, is impacted by this court decision by allowing third party employers to avail themselves of the exemption. This means that, for situations meeting the definition of and test for companionship, workers can receive straight pay, not overtime for work over 40 hours/week even when there is a third party employer.
Live in Exemption
Like the Companionship exemption, the DOL rule removed the availability of the live-in caregiver exemption from third party employers. This ruling allows third parties to utilize the exemption, enabling straight pay for live-in caregivers, including for those hours worked over 40. For details on what constitutes a “live-in” domestic service worker and other conditions of the exemption, see Fact Sheet #79B: Live-In Domestic Service Workers Under the FLSA. http://www.dol.gov/whd/regs/compliance/whdfs79b.htm
While this is decision is important, this case has not been fully decided (there are other counts to be considered by the court) and there will likely be appeals filed, even on this limited judgment. As a result, states should remain vigilant in their planning and budgeting in the event that, at the conclusion of these legal proceedings, the original rule will be in full force and effect.
NASDDDS will continue to closely monitor developments and keep you apprised.
To read the court’s decision, visit:
South Carolina Department of Disabilities and Special Needs Selects Therap Services as the Statewide Reporting System:
Electronic Documentation Software Solution for Intellectual and Developmental Disability Providers Wins Competitive Bid as the SaaS for SCDDSN
“Therap Services is excited to work with the state of South Carolina as the electronic documentation and communication solution for the Department of Disabilities and Special Needs.” Stated Justin Brockie, Therap Services COO. “We are honored to have the opportunity to bring Therap’s secure transparency to South Carolina’s state teams, DSN Boards, providers, and citizens.”
“The new partnership between SCDDSN and Therap is an exciting and vital step in improving the quality of care and services for thousands of individuals with disabilities in South Carolina. The benefits are multifold from both the individual perspective and the statewide level,” commented Dr. Beverly Buscemi, SCDDSN’s State Director. “Therap offers us a comprehensive system to facilitate communication between caregivers, support professionals, specialists and families to better meet the needs of an individual while simultaneously enhancing our ability as the state’s system to collect, track and report sensitive information to meet state and federal requirements. This new venture will move us forward in providing quality services.”
Barry Pollack, Southeast Regional Director for Therap Services, states “The partnership between Therap Services and South Carolina Department of Disabilities and Special Needs is a remarkable stride in its provision of the highest quality care to individuals. In its commitment to increase communication and maintain stellar documentation through use of Therap Services, SCDDSN remains on target with their mission to assist people with disabilities and their families in meeting needs, pursuing possibilities and achieving life goals.”
Therap Services applications and certified Electronic Health Record (EHR) provide the documentation components needed by Intellectual Disability and Developmental Disability Service Agencies to maintain their focus while adapting to a changing environment within the Human Services industry. State and federal agencies and standards, including CMS and HIPAA, mandate strict requirements on accurately tracking incidents, including those reports of abuse and neglect and prevention of Medicaid fraud. Therap’s customers can complete and monitor documentation efficiently across secure domains, enabling them to focus on providing higher quality services to individuals with intellectual and developmental disabilities.
Therap is used across disciplines in the I/DD field per the CMS home and community-based services (HCBS) requirements. Therap applications include over 70 modules ranging from documentation of service provision through a daily note, to person centered planning tools, incident report management, health assessments and individual care plans, an electronic MAR integrated with an industry-standard drug database, an individual referral process for state and multi-provider systems, a comprehensive report library for internal and external audits, to electronic billing direct to Medicaid through a secure, HIPAA 5010-compliant method.
About Therap Services, LLC
Therap Services provides secure, web-based documentation, communication and electronic billing services to over 1400 intellectual disability providers across the United States as well as for twelve state government ID systems of care.
This includes a certified EHR, HIPAA compliant Medicaid and private billing, service documentation and secure communication and data sharing between all stakeholders including families and self advocates.
Therap’s software-as-a-service solution is used in HCBS Waiver, ICF/IID and other services to document residential and community based supports, employment supports, case management, incident reporting, management of staff training records and for electronic billing claim submissions directly to Medicaid.
Learn more at www.TherapServices.net.
Suzanne Sewell, President & CEO , Troy Strawder, Board Chair
On July 22, 2014, President Obama signed the Workforce Innovation and Opportunity Act. The bill addresses unemployment across the spectrum – from vocational training, resume writing and English as a second language, to laid-off workers, disabled veterans and Americans with disabilities – the legislation casts a wide net through a host of federal government programs. In terms of Americans with disabilities, the bill is aimed at helping to prepare a new generation of young people with disabilities to succeed in competitive employment and predominantly impacts individuals with disabilities who are 24 years old and younger. This “new generation” will be required to first try vocational rehabilitation services before they are permitted to work in jobs paying less than the federal minimum wage. The bill is compatible with Florida’s Employment First Initiative which Florida ARF supports.
Meanwhile, Congressman Gregg Harper of Mississippi is sponsoring the Fair Wages for Workers with Disabilities Act of 2013 (HR 831), that if passed, would phase out 14(c) special wage certificates under the Fair Labor Standards Act of 1938 over a three year period. The bill has 94 sponsors and additional members of congress are poised to sign on. In Florida, six members of the congressional delegation have already signed onto the bill – Corrine Brown, Kathy Castor, Ander Crenshaw, Alcee Hastings, Daniel Webster, and Dennis Ross.
Now more than ever, the insights and viewpoints of Floridians with disabilities and their representatives are essential to the policy discussions going on at the national level. As we know, one size does not fit all. Many Community Rehabilitation Provider Agencies serve diverse constituencies and it is imperative that we make sure our congressional leaders are provided with a balanced perspective on the concerns and merits of center-based work experiences and 14(c) certificates and the need for more oversight of the programs at the federal levels. A number of variables play into the current equation including funding mechanisms, appropriate budget allocations and limits to disability compensations making it imperative that our congressional leaders recognize the true complexity of these issues.
We believe employees with disabilities and their representatives are the ones who should explain their experiences and tell their personal stories and that their representatives will hear and understand the complexities of the pending policy issues best when it comes from their own constituents.
Congressional Education Campaign
Florida ARF will be assisting its member agencies and interested parties with a campaign to educate members of the Florida Congressional delegation about the long-term implications of the policy decisions they are currently addressing. We encourage recipients and community rehabilitation providers to demonstrate real-life examples of how the proposed legislation to phase out 14 (c) would impact Floridians with disabilities in each congressman and woman’s district.
Collecting Authentic, Florida Stories
First and foremost, the campaign will involve telling the stories of employees throughout the state about their experiences in center-based employment environments and 14(c) employment opportunities and what they and their caregivers would be doing if the programs were eliminated.
Even though we support federal legislation and Employment First trends for younger employees with disabilities for youth transitioning out of school, we still need to feature current employees that would not be served outside of their current environments so that every individual with a significant disability has employment options. Therefore, we have developed a form to help your staff document the unique stories of the individuals they serve who receive 14 (c) subminimum wages.
Developing the Packet and Case Statement
With collaboration and final approval from each participating agency, staff will develop a packet of the top stories. The packet will also include white papers from appropriate sources, a Florida ARF position paper, and other relevant materials developed in collaboration with staff from a member agency.
Schedule Visits to Congressional District Offices
The Florida ARF Grassroots webpage contains information on how to set up Congressional appointments and a link to each US Senator and Representative serving Florida. Whenever possible, these visits should include employees with disabilities, their families, and other stakeholders on the scheduled visit to the congressional office. Remember, the purpose of the visit is to ensure that each congressional office hears directly from the community that will be impacted by the pending policy changes and what repercussions it will have on both the employee and the employee’s caregivers’ quality of life.
Let’s make a difference nationally and empower all Floridians with disabilities to validate the current merits of their employment!
Therap Services, LLC.
Therap Services EHR 2013.2.8
Long Term and Post Acute Care EHR
This product has been inspected against integrated functionality, interoperability and security criteria independently developed by CCHIT’s broadly representative, expert work groups. Using CCHIT’s testing methods, this product has been found in full compliance with the criteria in effect on the date of inspection.
©2012 Inspected and certified by the Certification Commission for Health Information Technology (CCHIT®).
Idaho Non-Profit Agrees to Pay $50,000 for HIPAA Violation
01/03/2013 –In a first of its kind settlement, a non-profit medical facility in Idaho will pay the U.S. Department of Health and Human Services (HHS) $50,000 for HIPAA violations surrounding potential exposure of patient information.
The settlement is the first involving a breach of electronic protected health information affecting fewer than 500 individuals.
“This action sends a strong message to the health care industry that, regardless of size, covered entities must take action and will be held accountable for safeguarding their patients’ health information.” said OCR Director Leon Rodriguez in an HHS press release published Wednesday.
In February 2010, Hospice of North Idaho (HONI) reported to HHS that an unencrypted laptop containing information on 441 patients was stolen from inside an employee’s car.
An OCR investigation found that HONI had no policies or procedures in regard to mobile device security as required by HIPAA. Additionally, HONI had never done any type of electronic protected health information risk analysis.
The laptop was never recovered.
When a breach impacts more than 500 individuals, companies are required tonotify all major media outlets in their state, as well as the government. A notice is included on the Department of Health and Human Services Web site in accordance with the Health Information Technology for Economic and Clinical Health (HITECH) Act.
For breaches that affect fewer than 500 people, organizations keep a log that is turned in to the Secretary of Health and Human Services annually.
In addition to the fine, the December 28th agreement includes a two-year corrective action plan that mandates that the facility immediately report any future breaches to HHS.
“The theft of the laptop was out of our hands, but the measures we have taken since then to ensure the security and privacy of our patients’ information have been numerous,” Brenda Wild, Hospice of North Idaho Board President said in a written statement.
Since the incident, the facility has increased security on any equipment that contains patient information, including encryption and increased password protection, and scheduled security training.
HONI’s staff of more than 100 people is North Idaho’s only inpatient hospice facility. The organization serves members of the community regardless of their ability to pay.