Posted July 3, 2014 | The Centers for Medicare & Medicaid Services (CMS) issued an Information Bulletin (IB) to assist states in the wake of the Department of Labor’s regulations pertaining to domestic service workers. As background for the IB, CMS states that, “…it is anticipated that many states will determine that, for purposes of the [Fair Labor Standards Act], home care workers in self-direction programs have joint third-party employer(s) in addition to being employed by the beneficiary. In self-direction models where there is a third-party joint employer, the DOL regulation states that all work is subject to minimum wage and overtime requirements.”
Given that many states have designed programs that could be implicated by the new DOL regulation, CMS “…strongly encourages state officials and other potential joint employers to carefully review and develop a working knowledge of” the new DOL guidance, Administrator’s Interpretation No. 2014-2 (released June 19, 2014). CMS goes on to state that each state will need to seek guidance from its own legal counsel, with input from DOL, if needed, to determine where the FLSA rules apply in its Medicaid program.
The remainder of CMS’ guidance focuses on two main issues: how states can account for overtime and travel time in their program structures, when such time is compensable per the DOL regulation; and, as CMS makes clear, even as states make modifications to comply with the DOL regulation, states are expected to adhere to the Supreme Court’s decision in Olmstead v. L.C., 527 U.S. 581 (1999), the Americans with Disabilities Act and generally effort to ensure people retain access to their workers.
Courtesy of the National Association of Medicaid Directors