United States: Applying the WPA to CDPAP -How Do You Do It?

Introduction. HOW you do things, it is said, is as important as WHAT you do. Operating a Fiscal Intermediary ("FI") under New York's Consumer Directed Personal Assistant Program ("CDPAP") epitomizes this. Do you know the difference between operating as a "Fiscal/Employer Agent" and an "Agency with Choice"? Do you know how to incorporate the Wage Parity Act ("WPA") into your wage and benefits package under CDPAP? The risks for getting it wrong are enormous. Here is a summary of what you need to know. Our goal is to teach how to get it right, with all the agreements, documents, and consumer orientation materials you need.

How do You Choose Between a "Fiscal/Employer Agent" and an "Agency with Choice"?

You choose or the choice is made for you. If you do not set yourself up to operate as a Fiscal/Employer Agent, you will likely default to being an Agency with Choice. An Agency with Choice is a joint employer with the consumer of the consumer's personal assistants. A Fiscal/Employer Agent is not. Beginning October 13, 2017, you must add a WPA Package of benefits or additional wages ($4.09 in NYC/$3.22 in LI and Westchester) to minimum wage rates. Use this introduction of the WPA Package as an opportunity to choose the Fiscal/Employer Agent model.

Fiscal/Employer Agent Model. The consumer is the sole employer of his or her personal assistant(s) and has total freedom of action and choice in whom to employ, where and when to receive services, how they are delivered, and how much to pay in benefits. You are only a payroll and benefit administration company. You are not in charge of a consumer's care. If you operate correctly as a Fiscal/Employer Agent, you do not take on any liabilities that you cannot control, such as unpaid wages for hours worked and overtime you did not know about, personal injury liability for the consumer and others, and penalties for not providing health benefit coverage under the Affordable Care Act. Also, because NYC has a two-tier minimum wage schedule until 2019 and a consumer with less than 11 employees in NYC is considered a "small employer," the "total compensation" due the consumer's personal assistant(s) is only $14.59 per hour until December 31, 2017 under the Fiscal/Employer Agent Model, as compared with $15.09 under the Agency with Choice model, where the agency is considered a large employer. This year, the minimum wage for a consumer's personal assistant is $.50 lower for a small employer than for a large employer, $1.00 lower next year, and $1.50 lower the following year. This can enable you to take cases where the managed care reimbursement rate would otherwise be too low to take the case.

Agency with Choice Model. You and the consumer are joint employers of the consumer's personal assistants. Even though you do not receive the consumer's plan of care, or hire, fire, train, schedule hours or decide when or where services may be rendered, in a home or car or anywhere else, you are jointly and separately liable for how the consumer's personal assistants perform their services and any hours worked and unpaid and overtime unpaid. Because past and present liability for 24- hour cases is still unsettled, and the ten largest shareholders of a non-publicly held corporation in New York can be held personally liable for unpaid wages and benefits, this is particularly troublesome. This, alone, is reason enough not to be an Employer with Choice.

How Do You Provide the WPA Package Under the Fiscal/Employer Agent Model?

Types of benefits. To attract cases, you want to provide benefits that personal assistants want to receive. Benefits that are not taxable to personal assistants are the obvious choice. For example, if a consumer allocates $1.00 per hour to a pre-tax transit plan, a personal assistant working 40 hours per week, in a 30% tax bracket, can receive a $121 monthly Metrocard tax-free, whereas the personal assistant would have had to earn $173 in order to have, after taxes, the $121 necessary to buy the card herself -- a $52 per month saving! Another desirable benefit is a Qualified Small Employer Health Reimbursement Account ("QSEHRA"), which only became available this year. A personal assistant who purchases a subsidized health plan on the NYS Health Insurance Exchange (https://nystateofhealth.ny.gov/) can be reimbursed tax-free for the premiums they pay by allocating part of their $4.09/$3.22 Package to this benefit. Open enrollment for Exchange plans for 2018 is November 1, 2017 to January 31, 2018, just in time for personal assistants to apply. For those who need health insurance because their wages, with minimum wage increases, will make them ineligible for Medicaid, this can be a great benefit. Other pre-tax benefits that can be made available include dependent care, whether for child or elder care, and educational benefits for personal assistants to continue their education or learn new skills.

Designing and Delivering the Benefits. Here is where "HOW" you do it becomes so important. Tax-free benefits must meet Internal Revenue Code, ERISA, and WPA requirements. If you do not want to be considered a joint employer of a consumer's personal assistants, do not sponsor a "cafeteria plan," do not cover pre-tax benefits through a funded trust to which you contribute amounts per hour, unless it is properly constructed and qualified by the Internal Revenue Service as a "voluntary employees' beneficiary association"; and do not pay exorbitant administrative fees for delivering benefits. Auditors from the NYS Medicaid Inspector General, NYSDOL and IRS will scrutinize administrative fees, among other things, to see how much of the WPA Package is actually reaching personal assistants. Plaintiffs' attorneys are already bringing WPA cases, suing for failure to pay the full Package.

How Do You Orient a Consumer Under the Fiscal/Employer Agent Model?

Have a system in place for enrolling (or re-enrolling with the added WPA Package) consumers into your Fiscal/Employer Agent, which includes an orientation script that protects you against claims of joint employment, and all 21 agreements and documents to be used with the consumer or the personal assistant during the orientation, with you as the consumer's agent for this express purpose. Don't "set the wage rate" or determine the benefits package for personal assistants. Place wage and pre-tax benefit choices in front of consumers, and let the consumers decide on their own which they want to give their personal assistants. Also allow consumers to choose to give taxable benefits allowed under the WPA, such as more rest or sick days than those required by the NYS Domestic Workers Bill of Rights and the NYC Earned Sick time Act.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions