Executive Summary. Audits of compliance with the Wage Parity Act ("WPA") are on the rise. The NYS Attorney General's Medicaid Fraud Unit, Medicaid Inspector General ("OMIG"), and Department of Labor ("DOL") are all auditing home care agencies. Unless you know what will be asked, you are at a serious disadvantage. Unless you know how to prove your compliance with the WPA to an auditor, you are also at a serious disadvantage.
FordHarrison's audit response team consists of a former NYC agency inspector general, benefits/tax counsel, and wage and hour attorneys whose practices are focused on "prevailing wage" type statutes, such as the WPA, who have conducted home care industry wide symposia on the WPA, and who are currently assisting agencies under audit and in court litigation on WPA claims.*
What is Being Audited? The WPA sets requirements for a wage and benefit package (the "Package") for each such Medicaid-funded “episode of care” hour worked by a home care worker. Among the questions being asked by auditors are: Was the Package of additional wages and benefits paid on each episode of care hour worked? What amount was paid in additional wages and was it counted in calculating the worker's regular rate for overtime? What benefits were provided? Are they creditable toward the WPA Package? Was each benefit provided to every home care worker? If a worker did not select or use a particular benefit, did the worker receive cash instead of the benefit? How was the per hour cost of each benefit calculated? Did non-Medicaid home care workers receive any benefits for which credit was taken against the WPA package? Were the administrative costs for provided benefits reasonable and justifiable? Did the agency, its owners, or anyone else in any way connected with either, receive anything in return for WPA benefits provided to workers?
Do the Audits Expand Beyond the WPA? Audits by both OMIG and the DOL have expanded beyond the WPA to encompass compliance with other NYS wage and hour laws. This includes payment for non-episode of care hours, whether for travel time, training time, mandated health physical time and office disciplinary time. It also includes whether overtime pay was properly calculated and paid, and whether a home care agency has complied with the NYS' “spread of hours law (requiring an additional hours’ pay at minimum wage if the span of work hours in a day exceeds 10 or includes a split shift) and the NYS’ Domestic Worker’s Bill of Rights (requiring a minimum of three paid rest days and two paid sick days after one year’s employment, one protected day (24 consecutive hours) off each workweek, and overtime pay if the worker volunteers to work on their protected day off, regardless of how many hour were worked that week).
Bottom Line: Proving to the Attorney General, OMIG, or the DOL that you are in compliance with the WPA requires preparation. Preparation requires knowledge of the questions you will be asked and how you will respond. Learn what you will be asked and prepare how you will respond before you are audited.
If you have any questions regarding this Alert or would like our advice of your home care agency's particular facts and circumstances, please contact our Home Care Group members, Stephen Zweig, szweig@fordharrison.com, Philip Davidoff, pdavidoff@fordharrison.com, or Eric Su, esu@fordharrison.com, in FordHarrison's New York City office, or the FordHarrison attorney with whom you usually work. Also, please visit our website at https://homecareemploymentlaw.wordpress.com/.
*Prior results do not guarantee a similar outcome.