Executive Summary. Participation in Consumer Directed Personal Assistance Programs (“CDPAPs”) in New York has steadily increased since the NYS Department of Health announced that effective April 2016, relatives of consumers may be hired as the consumer’s personal assistants, so long as they are not “legally responsible” for the consumer’s “care and support.” This created an opportunity for children to get paid for taking care of their own parents and vice versa. The number of CDPAPs has also grown as NYS contracts with more traditional home care agencies, allowing them to expand their service options and accept CDPAP referrals from managed care organizations. However, undue risk exists if the CDPAP is operated in the wrong way without legal advice.
CDPAP’s Advantages. CDPAPs can be an ideal way for certain consumers to receive Medicaid-funded home care, liberating those consumers or their designated representatives to be able to recruit, hire, train, supervise and direct their own personal assistants, using an agency only as a fiscal intermediary for payroll process and benefit administration. The consumer is free to choose the workers s/he wants, train and schedule them as s/he pleases, and receive their services wherever s/he is, in accordance with her/his plan of care.
For a traditional home care agency willing to accept less control over the relationship between consumers and their personal assistants, a CDPAP can be a way to increase revenues and market share in a very competitive industry. With less benefits required to be provided, a CDPAP allows agencies to keep more of the Medicaid reimbursement rate per hour after all costs are accounted for.
CDPAP’s Undue Risks. In NYS, the CDPAP is the “fiscal intermediary,” functioning primarily as the consumer’s payroll and benefit administrator. But NYS regulations also make a CDPAP responsible for (i) “ensuring that the health status of each consumer directed personal assistant is assessed prior to service” and (ii) “monitoring the consumer's or, if applicable, the consumer's designated representative's continuing ability to fulfill the consumer’s responsibilities under the program.” These responsibilities can create undue risks for a CDPAP if not performed properly.
Federal and NYS wage and hour laws apply to personal assistants, although the NYS Wage Parity Act does not. Local Living Wage laws also apply, as does the NYS Domestic Workers’ Bill of Rights, incorporating, in NYC, the Earned Sick Time law. However, the biggest threats are private lawsuits claiming the CDPAP is a “joint employer” with its consumers of the personal assistants. The U.S. Department of Labor has warned that, for a “Medicaid-funded consumer directed program,” any “agency that administers the program” may be a joint employer, “responsible, both individually and jointly, for compliance with all of the applicable provisions of the [FLSA].”
Shielding a CDPAP from Risk. To be shielded from undue risks, a CDPAP must implement policies, procedures, agreements and forms substantially different from a traditional home care agency. It must also think and act differently when dealing with consumers and their personal assistants. FordHarrison’s attorneys have represented CDPAPs for over 20 years and can work with you to offer advice and the documents needed to solve these problems.
If you would like our advice regarding your CDPAP’s particular facts and circumstances, please contact the author, Stephen Zweig, Partner in FordHarrison’s New York City office, who has counseled and defended home care agencies for over 35 years, at szweig@fordharrison.com, or (212) 453-5900, or the FordHarrison attorney with whom you usually work. Also, visit our website at www.homecareemploymentlaw.com.