LeadingAge New York, the Home Care Association of NYS and the NY State Association of Health Care Providers are asking you to complete the following brief survey to help determine the potential fiscal impact of new federal wage and hour requirements on your agency. As this new rule has the potential to increase the labor and administrative costs of agencies, and affect the workforce and patient care, your participation in the survey is most critical and will help better inform and support association advocacy efforts on your behalf.

Your responses will be kept strictly confidential; only aggregate data will be used in any advocacy, including working for additional Medicaid funding for home care providers, managed care plans and workers.

Background on New Rule

On August 21, 2015, the United States Court of Appeals upheld the final rule extending the Fair Labor Standards Act's minimum wage and overtime provisions to home care workers (which had long been exempted due to concerns for adverse impact on patient care and accessibility of service).

Provisions/Implications of Rule Change

• Minimum Wage and Overtime Requirements - Pending further appeals, it requires home care agencies and third party employers to pay at least the federal minimum wage and overtime to home health aides, personal care aides and certified nursing assistants. (In New York State, home care agencies are already required to compensate aides at least the minimum wage and overtime.)

• Requires Overtime based on Actual Wage - The rule requires overtime pay based on the aide's actual wage or base wage, not minimum wage (which includes travel time between cases when an aide is under the employ of a single employer for the cases).

• Calculation of Hours & Compensation - The aide working on a “live-in”/”sleep-in” case must be paid a minimum of 13 hours provided she/he gets at least 8 hours of sleep time (5 of which must be uninterrupted) plus three hours for meals*. For meal time to be uncompensated, the aide must be given an hour of free time in which she may choose to eat or engage in other non-work activities. If the aide is required to assist her client during meal time, she must be paid for that period.
(*Please note that this is referencing a federal rule; there are currently separate lawsuits progressing at the State level related to payment for "live-in"/"sleep-in" cases.)

• New Recordkeeping Requirements - The rule also requires new record-keeping requirements for agencies employing "live-in" staff to track their actual hours worked, meal time, and sleep time.

The following questions apply to all your home care programs in fee-for-service and managed care Medicaid, including consumer directed services, Nursing Home Transition and Diversion, Traumatic Brain Injury and other waivers.

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* 1. Please enter your agency’s name and operating certificate number and identify the region(s) of the state that your agency serves (please select all that apply).

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* 2. For the 2014 calendar year, what was the total number of hours paid by your agency for Medicaid cases in excess of 40-hours/week?

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* 3. If you have already reduced overtime for Medicaid cases in anticipation of this change, how many hours do you project you will have reduced in 2015 compared to the total number of overtime hours paid in 2014?

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* 4. When your agency currently pays aides time-and-a-half for hours worked in excess of 40 hours weekly, does it pay overtime pay based on the NYS minimum hourly wage or the aides' base hourly wage?

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* 5. What is the projected additional annual cost to your agency to comply with the new rule:

a. Payment of overtime hours in excess of 40 hours per week on Medicaid cases based on actual wages without making any changes to current assignment.
b. Projection of additional administrative expense associated with implementation?
c. Other new expenses required or triggered by the new rule?

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* 6. For how many Medicaid “live-in”/”sleep-in” cases does your agency currently provide service?

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* 7. How will the rule's impact affect the way you do business in terms of your services to overtime cases or "live-in"/"sleep-in" cases in the future (please select all that apply)?

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