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Court Ruling Related to the DOL Companion – Home Care Rule

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.

Companionship Exemption

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:

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2014cv0967-21

 

Therap Services Wins South Carolina DDSN Contract for Statewide EHR

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

WATERBURY, Conn., Nov. 12, 2014 /PRNewswire/ — Therap Services, leader in electronic documentation software for Intellectual Disability and Developmental Disability Service Providers, announces it has been selected as the statewide Software as a System (SaaS) Reporting System for South Carolina Department of Disabilities and Special Needs (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.

 

MeckLINK to go to Cardinal

Mecklenburg to turn over MeckLINK, fed money

Posted: Wednesday, Oct. 30, 2013
 Mecklenburg County will abandon an idea to create its own authority to govern MeckLINK Behavioral Healthcare and the millions of dollars in federal Medicaid money it uses to provide mental health services.

Instead, a MeckLINK committee of four county commissioners is set to recommend to the full board next Tuesday that the county negotiate the best deal possible to turn over the program to Kannapolis-based Cardinal Innovations Healthcare Solutions. That would effectively dissolve MeckLINK and send Cardinal nearly $200 million in Medicaid funding that county uses each year for services to 120,000 patients.

It was clear from the committee’s Tuesday meeting that board members have all but given up the fight to keep MeckLINK and want to negotiate what is best for the consumers and providers – and MeckLINK’s 200 employees. Committee members were clear in what they want the county to get in the negotiations.

Those wishes include:

• A “proportionate” representation on the Cardinal board to give Mecklenburg a significant say in how its Medicaid money is used. The 15-county Cardinal oversees services for 187,000 consumers, compared with MeckLINK’s 120,000.

• Cardinal reimbursing at least some of the money Mecklenburg has sunk into MeckLINK. The county has spent $8.4 million to get the agency running and continues to pay $90,000 in monthly operating costs. Assistant County Manager Michelle Lancaster said in conversations with Cardinal CEO Pam Shipman that Shipman wasn’t against some level of payback.

Dena Diorio, also an assistant county manager, told the committee that MeckLINK’s reserve fund of as much as $4.5 million would be retained, possibly lowering the reimbursement request.

• Cardinal hiring MeckLINK employees who are “in good standing for positions they would want to hire” and MeckLINK consumers being able to keep the same providers if they choose.

In late December, the predecessor to N.C. Health and Human Services Secretary Aldona Wos tried to reassign MeckLINK to Cardinal. But after Mecklenburg threatened to sue, Wos allowed the county to continue operating – and governing – MeckLINK.

But in June, state legislators passed a law that forced the agency to operate under a single-county, independent authority or merge with an already existing multi-county authority by April 1.

For weeks, relatives of consumers and many providers have urged the county to pursue a single-county authority. In the end, commissioners said it would be too costly.

Commissioner Trevor Fuller, who chairs the committee, said he believes Mecklenburg has leverage to use in the negotiations. “We do have something they want,” Fuller said. “They want these people (the 120,000 consumers), and they want the ability to manage that amount of money.”

The new law requires county commissions in each of the authority’s counties to approve how Cardinal appoints its board. If Mecklenburg doesn’t approve the method, the authority wouldn’t comply with the law. “They would need our approval to do what they want to do,” Fuller said.

County Attorney Marvin Bethune told the committee that Mecklenburg could simply walk away from MeckLINK and tell the state “we’re terminating our contract on March 31. We’re not doing anything more – do what you want to do.”

That option didn’t seem to get much support from committee members. But “it is an option,” Fuller said. “We certainly can’t allow ourselves to be put in a position where get completely run over. So as a last resort, we can say, ‘fine, you want it, you manage all the issues, you pay for all the transition. Don’t ask us for anything.’

“But that gets messy.”

Still, he said, the county could use that threat to get state help with the negotiations. “If Cardinal is recalcitrant, we will need the state to control them a little,” Fuller said.

Lancaster said Shipman told her that Cardinal could transition MeckLINK within 120 days after a deal is sealed.

“The clock’s ticking,” said commissioner Bill James, a committee member.

Before the committee takes its recommendations to the full board on Tuesday, it wants to meet on Monday with Wos, Cardinal CEO Shipman and her board chair, and Rep. Nelson Dollar of Wake County, a key author of the law requiring MeckLINK to be governed by an authority.

“We want to hear from the secretary and Rep. Dollar what their vision is for what they’re trying to accomplish,” Fuller said. “And we want to have a conversation with (Cardinal officials) about how to get to where we need to be. We need some beginnings of commitment.

“We have looked at all the options, and are trying to do the best we can in a bad situation.”

Perlmutt: 704-358-5061
Read more here: http://www.charlotteobserver.com/2013/10/29/4425126/mecklenburg-to-turn-over-mecklink.html#.UnFMBfnrwh9#storylink=cpy