Executive Summary. In our December 23, 2019 Legal Alert we reported that the NYS Department of Health’s (“DOH”) Request for Offers (“RFO”) required a “Joint Employment Attestation” in any offer to continue or first become a Fiscal Intermediary (“FIs”) under NYS’s Consumer Directed Personal Assistance Program (“CDPAP”). We suggested the DOH be asked six questions, each of which has been answered, to some degree, in the Q&A the DOH issued on January 31, 2020. Below are our observations and opinion on the path forward and the DOH’s key answers on Joint Employer status in a chart accessible as a PDF from this Legal Alert.
Our Observations/Opinion on the Path Forward
- The DOH’s concept of “joint employment” and its consequences for FIs in the State’s CDPAP differs from what is commonly understood under labor and employment law. Under the DOH’s Q&A’s it does not appear that liability exposure is always “joint and several,” in other words, that either the Lead FI or the consumer can be held liable for all violations of law, regardless of which employer has actual control. The DOH acknowledges that NYS statute prohibits FIs from controlling most aspects of the employment relationship between consumers and their personal assistants and appears to allocate liability exposure between the Lead FI and the consumer on that basis.
- Beyond the joint employer issue, the key question for every FI is whether it should submit an offer on its own, and/or align itself as a subcontractor with one or more Lead FIs, who submit an offer, or develop some sort of collaborative partnership with other FIs to submit an offer.
- Because the DOH estimate that over 450 FIs had operating agreements with MCOs or LDSS in fiscal year 2019, and its RFO plainly states that DOH’s intent is to “award the fewest number of contracts that preserve statewide access and consumer choice,” it is fair to conclude that the number of FIs awarded contracts will shrink the number of FIs that participate in the State’s CDPAP. If an FI wishes to submit an offer on its own, it certainly may, but to obtain a contract it must distinguish itself from all others in some tangible way, whether by geographical scope that would ensure access in rural and underserved areas, some special cultural, language, or other competency in servicing certain populations, or other operational efficiencies, whether from the total number of consumer being serviced or otherwise.
- If an FI chooses to become a subcontractor to a Lead FI, the subcontractor should make certain that its interests are properly protected and its rights and obligations clearly and completely spelled out in an agreement with the Lead FI. Before it commits to becoming a subcontractor, the subcontractor deserves to know, in a written agreement, how its compensation will be calculated and how the subcontractor will be protected against any solicitation, taking or performance of services for the subcontractor’s consumers by the Lead FI or another one of the Lead FI’s subcontractors, without the subcontractor’s express written consent. A subcontractor should not allow these very important details to be postponed to some later date when the subcontractor will have no bargaining power.
DOH Policy Questions and Answers on Joint Employer Status (See chart accessible by PDF here)
Conclusion. From the DOH’s perspective, it appears that liability exposure for Lead FI’s and consumers is, at least in some circumstances, divided, notwithstanding the joint employer label, with the Lead FI liable for actions over which it has control and consumers liable for actions over which they have control by NYS statute. For those FIs who wish to file an offer on their own, or as a Lead FI, or need assistance as a subcontractor or some other form of collaborative partnership, the core question is how to adequately protect each FI. It is not too early to negotiate and obtain these protections. We are available to answer further questions about how this can be done.
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