U.S. Department of Labor (DOL) Issues Opinion Letter

Share on facebook
Share on twitter
Share on linkedin
Department of Labor

This month, the DOL issued a favorable opinion letter addressing a critical Live-In pay issue (excludes CA and CO). Our team here at AxisCare is excited to help fund this effort – we look forward to helping address numerous other industry issues in 2021. 

Read the letter below written by Littler Mendelson’s Angelo Spinola for detailed information on the Opinion Letter and how to run a compliant live-in/extended shift program.

Read About Our Ground-Breaking Partnership with Littler Mendelson>>

DOL opinion letter

Favorable DOL Live-In Opinion Letter

Written by Angelo Spinola | January 06, 2021

Happy New Year! I hope you had some time to rest and recharge over the extended weekend. We received some good news on New Year’s Eve: The U.S. Department of Labor (DOL) issued an Opinion Letter related to the “shift rate,” inclusive of the pre-payment of overtime, some agencies pay their caregivers who work live-in and extended shifts of 24 hours or more.

Littler represented a group of agencies that pooled their resources and funded this request – giving us another great example of how the industry can come together in an economically reasonable way to address a commonly felt problem. We continue to bat a thousand on DOL opinion letter requests and I want to personally thank those providers that stepped up to fund this effort. This is a wonderful result for the entire industry! Please keep a record of this communication and opinion letter which may be important for a good faith defense somewhere down the line.

Please forgive the length and technical nature of this alert, but we regularly receive many questions about this complicated area.

It is important first to define two key terms. A “live-in” under federal law is a caregiver who works “extended periods of time” in the client’s home. This could be someone whose sole residence is the client’s home, or it could be someone who spends as little as five consecutive days or nights per week in the home (such as working Monday at 7:00 a.m. to Friday at 7:00 p.m.).

An “extended shift” caregiver is at the client’s home for over 24 hours, but something less than the time required to be considered a live-in. This distinction is most important for determining how many hours can be potentially excluded from pay. An extended shift caregiver may have up to eight hours of sleep and potentially three hours of meals excluded from pay for each 24-hour period (depending on state law). Live-in caregivers may have even more downtime excluded when they are free from work without losing the ability to deduct additional time for bona fide sleeping time. The contours of sleep/meal/downtime requirements are beyond the scope of this alert, but we are happy to discuss if you have questions!

We requested this opinion because many caregivers and clients have an expectation that live-in and extended shifts should be paid a consistent amount per shift if a caregiver works the same number of hours. They frequently discuss compensation for such shifts on a “per-shift” basis. Some agencies have found they need to quote pay rates in this way to encourage caregivers to take certain assignments. This Opinion Letter is a very helpful development for those agencies. And given the ongoing pandemic, the demand for such arrangements will likely only increase making it more likely that other agencies can take advantage of this Opinion Letter. If you are not currently offering live-in/extended shift options to your clients, you may want to consider it now.

The complication is with the way caregivers view their pay; it isn’t consistent with the federal Fair Labor Standards Act (FLSA). Under the FLSA, non-exempt employees (such as caregivers employed by home care agencies) must be paid at least the minimum wage for all hours worked and an overtime rate of at least 1.5 times their regular rate for hours worked over 40 in a workweek (we are putting aside more restrictive state laws, such as those in California and Colorado). So the amount a caregiver technically earns in the first few days of working a live-in shift is actually much less than she earns in the last few days of a workweek, as the first few shifts will be paid almost exclusively at the regular rate, and the last few shifts will be paid almost exclusively at the overtime rate. (Suppose a live-in caregiver is expected to work 16-hour shifts over a five-day workweek and be paid $10/hour. The first two and a half days will be paid at $10 per hour (2.5 X 16 = 40) and the second half of the third day, and the fourth and fifth days will be paid at $15 per hour (the overtime rate). Overall, she earns $1,000 for the workweek – $400 (40 X $10) in straight time and $600 (40 X $15) in overtime.)

If an agency simply tells a caregiver she will earn $200 per shift ($1,000 divided by 5 days) without explaining this is a blend of regular and overtime rates, the caregiver may misunderstand her effective hourly rate to be $12.50 ($200 divided by 16 hours). If the caregiver talks with a lawyer and explains how she understands the situation, the attorney may file a lawsuit on her behalf (and on behalf of all the other employees of the agency) claiming that she and the others were never paid overtime. The claim suggests they deserve $6.25 in additional pay (that would be the overtime premium due on $12.50 regular rate) for every hour worked over 40 hours in a workweek. If the caregiver succeeded in such a lawsuit, she could recover $250 per workweek she worked a regular schedule of five 16-hour shifts. If the agency had multiple employees in such a situation, that could become a big number quickly! (This is a good reason to have an arbitration program with a class action waiver.)

For years, we have discouraged quoting pay in these terms for just this reason. However, we understand the practical pressures you face and therefore have structured our template live-in and extended shift agreements to explain exactly how the caregiver is actually paid. This Opinion Letter now buttresses that explanation, verifying this approach follows the DOL’s understanding of the FLSA.

To take advantage of this Opinion Letter, an agency MUST properly explain its pay method in a written agreement with the caregiver. As you can see, this can get confusing. And if the arrangement isn’t written down and explained, it will be difficult for the agency to explain to a court that the caregiver was mistaken in her belief.

Another complicated area, which must be addressed in the agreement, happens when a caregiver works more or less than the number of hours the parties expect she will work. The Opinion Letter speaks to the situation where she works more; she should be paid at her overtime rate. But, it is silent on what happens when she works less. In the letter requesting the Opinion, we provided an example (based on much the same scenario as in this alert) where the employee would be paid the same rate if she worked two of the five shifts in a week. Thus, in our example, she would be paid $400 for working two shifts. This is technically an overpayment, given that the employee actually worked only 32 hours and therefore technically would have earned $320 for those shifts. But, this is the tradeoff for this arrangement and the DOL did not flag the overpayment as an issue.

The final important point to note from the Opinion Letter is the need to maintain accurate records. As an employer, the agency must track actual hours worked each week. In a lawsuit, it is the agency’s word against the caregiver. And if the agency cannot produce records to substantiate its position, the caregiver’s recollection of how much she worked will control. It is important that an agency not just track the start and end of each workday, but also track any other periods when a caregiver isn’t supposed to be on-the-clock. Similarly, the agency needs a method to track any interruptions when the employee is not supposed to be working but is called to work (such as the client’s middle of the night trip to the restroom that the caregiver must assist with).

As you can see, running a compliant live-in/extended shift program is complicated. But, it can be done and it just got a little bit easier. And, it will meet the demand you likely are facing in the marketplace. If you would like additional guidance on operating such a program and help drafting the right agreements, we would be happy to discuss. Also, if you would like us to review your current approach, we would be delighted to assist you. One thing is certain, agencies should not be afraid to offer live-in and extended shift services. This opinion letter provides ample protection for those programs set up in a compliant manner with the proper documentation.

Thank you for your continued support and may you have a prosperous and healthy New Year!

Angelo Spinola, Littler Mendelson

Wyoming

Supported: YES

Wyoming has chosen to use an open vendor model in which the state sets the standards for EVV, and providers may either use their existing EVV system or choose one that best meets their needs.

AxisCare has developed a direct integration with CareBridge, Wyoming’s EVV aggregator, so providers may continue to use AxisCare as their EVV and management solution.


Illinois

Supported: YES

Illinois has chosen to implement an open vendor model in which the state selects a single aggregator (in this case, Sandata Technologies) while allowing providers and MCOs to continue using their existing EVV systems as long as it meets federal EVV guidelines.

AxisCare meets state EVV requirements, so providers may continue to use AxisCare as their EVV and management solution. We have also developed an integration with Sandata, Illinois’s contracted aggregator, which will allow agencies to easily send required visit information.

Minnesota

Supported: YES

AxisCare meets the state ‘s EVV requirements, so providers may continue to use AxisCare as their EVV and management solution. We have also developed an integration with HHAeXchange, Minnesota’s chosen aggregator, which will allow agencies to easily send required visit information directly to HHAeXchange. 

Michigan

Supported: YES

The Michigan Department of Health and Human Services has decided to go with an Open Model that allows providers to choose their own EVV system, as long as it meets federal EVV regulations. They are in the process of choosing an aggregator system that will accept data from all EVV systems.

AxisCare meets all state and federal EVV requirements, so providers may continue to use AxisCare as their EVV and management system.

Massachusetts

Supported: YES

Massachusetts has chosen an open model, but has not selected the aggregator.  AxisCare meets state EVV requirements, so providers may continue to use AxisCare as their EVV and management solution.  

Maryland

Supported: NOT AT THIS TIME

Maryland has chosen a closed model where AxisCare is currently not able to provide EVV data to the state.   Providers can choose to use AxisCare due to the many advantages but you must use ISAS to collect EVV required data.

 

Maine

Supported: YES

Maine has chosen to implement an open vendor model in which the state selects a single aggregator (in this case, Sandata Technologies) while allowing providers to continue using their existing EVV systems as long as it meets federal EVV guidelines.

AxisCare meets state EVV requirements, so providers may continue to use AxisCare as their EVV and management solution. We have also developed an integration with Sandata, Maine’s contracted aggregator, which will allow agencies to easily send required visit information.

Louisiana

Supported: YES

AxisCare meets the state ‘s EVV requirements, so providers may continue to use AxisCare as their EVV and management solution. We have also developed an integration with LaSRS, Louisiana’s chosen aggregator, which will allow agencies to easily send required visit information directly to LaSRS. 

 

Kentucky

Supported: CONTACT US

Kentucky has chosen an open model with Tellus serving as the aggregator.  AxisCare has not developed the integration with Tellus for Kentucky yet (AxisCare supports Tellus integration in other states), but if your organization is interested in using AxisCare, please contact us. 

 

Kansas

Supported: NOT AT THIS TIME

Kansas has chosen a closed model where AxisCare is currently not able to provide EVV data to the state.   Providers can choose to use AxisCare due to the many advantages but you must use Sandata to collect EVV required data.

Iowa

Supported: YES

Iowa has chosen to implement an open vendor model in which the state selects a single aggregator (in this case, CareBridge) while allowing providers and MCOs to continue using their existing EVV systems as long as it meets federal EVV guidelines.

AxisCare meets state EVV requirements, so providers may continue to use AxisCare as their EVV and management solution. We have also developed an integration with CareBridge, Iowa’s contracted aggregator, which will allow agencies to easily send required visit information.

Indiana

Supported: YES

Indiana has chosen to implement an open vendor model in which the state selects a single aggregator (in this case, Sandata Technologies) while allowing providers and MCOs to continue using their existing EVV systems as long as it meets federal EVV guidelines.

AxisCare meets state EVV requirements, so providers may continue to use AxisCare as their EVV and management solution. We have also developed an integration with Sandata, Indiana’s contracted aggregator, which will allow agencies to easily send required visit information.


Idaho

Supported: YES

Idaho has chosen to implement an open vendor model in which the state selects a single aggregator (in this case, Sandata Technologies) while allowing providers and MCOs to continue using their existing EVV systems as long as it meets federal EVV guidelines.

AxisCare meets state EVV requirements, so providers may continue to use AxisCare as their EVV and management solution. We have also developed an integration with Sandata, Idaho’s contracted aggregator, which will allow agencies to easily send required visit information.

Missouri

Supported: YES

AxisCare meets the state’s EVV requirements, so providers may continue to use AxisCare as their EVV and management solution. We have also developed an integration with Sandata, Missouri’s chosen aggregator, which will allow agencies to easily send required visit information.


Hawaii

Supported: YES

Hawaii has chosen to implement an open vendor model in which the state selects a single aggregator (in this case, Sandata Technologies) while allowing providers and MCOs to continue using their existing EVV systems as long as it meets federal EVV guidelines.

AxisCare meets state EVV requirements, so providers may continue to use AxisCare as their EVV and management solution. We have also developed an integration with Sandata, Hawaii’s contracted aggregator, which will allow agencies to easily send required visit information.

 


Georgia

Supported: YES

Georgia has chosen to use an open vendor model in which the state sets the standards for EVV, and providers may either use their existing EVV system or choose one that best meets their needs.

AxisCare has developed a direct integration with Tellus, Georgia’s EVV aggregator, so providers may continue to use AxisCare as their EVV and management solution.

 

Alaska

Supported: CONTACT US

Alaska has chosen an open model with Therap serving as the aggregator.  Therap has not provided the detailed specifications yet, but if your organization is interested in using AxisCare, please contact us.

Florida

Supported: YES

AxisCare currently provides direct integration with HHAeXchange and Tellus, so providers may continue to use AxisCare as their EVV and management solution.

 

Delaware

Supported: Coming Soon

Payers in Delaware have selected Sandata and AxisCare is completing the necessary development. We are planning on being fully compliant soon.

 

Connecticut

Supported: NOT AT THIS TIME

Connecticut has chosen a closed model where AxisCare is currently not able to provide EVV data to the state.  Providers can choose to use AxisCare due to the many advantages but you must use Sandata to collect EVV required data.

 


Colorado

Supported: YES

Colorado has chosen to implement an open vendor model in which the state selects a single aggregator (in this case, Sandata Technologies) while allowing providers and MCOs to continue using their existing EVV systems as long as it meets federal EVV guidelines.

AxisCare meets state EVV requirements, so providers may continue to use AxisCare as their EVV and management solution. We have also developed an integration with Sandata, Colorado’s contracted aggregator, which will allow agencies to easily send required visit information.


California

Supported: YES

California has chosen to implement an open vendor model in which the state selects a single aggregator (in this case, Sandata Technologies) while allowing providers and MCOs to continue using their existing EVV systems as long as it meets federal EVV guidelines.

AxisCare meets state EVV requirements, so providers may continue to use AxisCare as their EVV and management solution. We have also developed an integration with Sandata, California’s contracted aggregator, which will allow agencies to easily send required visit information.


Arkansas

Supported: YES

AxisCare meets state EVV requirements, so providers may continue to use AxisCare as their EVV and management solution. We have also developed integrations with HHAeXchange, AuthentiCare, and CareBridge, Arkansas’ contracted aggregators, which will allow agencies to easily send required visit information.

Arizona

Supported: YES

AxisCare meets the state ‘s EVV requirements, so providers may continue to use AxisCare as their EVV and management solution. We have also developed an integration with Sandata, Arizona’s chosen aggregator, which will allow agencies to easily send required visit information directly to Sandata.

Mississippi

Supported: YES

The Mississippi Department of Medicaid has decided to go with an Open Model that allows providers to choose their own EVV system, as long as it meets federal EVV regulations. They are in the process of choosing an aggregator system that will accept data from all EVV systems.

AxisCare meets all state and federal EVV requirements, so providers may continue to use AxisCare as their EVV and management system.

Montana

Supported: YES

Montana has decided to go with an Open Model that allows providers to choose their own EVV system, as long as it meets federal EVV regulations. They are in the process of choosing an aggregator system that will accept data from all EVV systems.

AxisCare meets all state and federal EVV requirements, so providers may continue to use AxisCare as their EVV and management system.

Wisconsin

Supported: YES

Wisconsin has chosen to implement an open vendor model in which the state selects a single aggregator (in this case, Sandata Technologies) while allowing providers to continue using their existing EVV systems as long as it meets federal EVV guidelines.

AxisCare meets state EVV requirements, so providers may continue to use AxisCare as their EVV and management solution. We have also developed an integration with Sandata, Wisconsin’s contracted aggregator, which will allow agencies to easily send required visit information.

Rhode Island

Supported: YES

Rhode Island has chosen to implement an open vendor model in which the state selects a single aggregator (in this case, Sandata Technologies) while allowing providers to continue using their existing EVV systems as long as it meets federal EVV guidelines.

AxisCare meets state EVV requirements, so providers may continue to use AxisCare as their EVV and management solution. We have also developed an integration with Sandata, Rhode Island’s contracted aggregator, which allows agencies to easily send required visit information.

West Virginia

Supported: CONTACT US

West Virginia has chosen an open model with HHAeXchange serving as the aggregator.  AxisCare has not developed the integration with HHAeXchange for West Virginia yet (AxisCare supports HHAeXchange integrations in other states), but if your organization is interested in using AxisCare, please contact us. 

Washington DC

Supported: CONTACT US

Washington DC has chosen an open model with Sandata serving as the aggregator.  AxisCare has not developed the integration with Sandata for DC yet (AxisCare supports Sandata integration in other states), but if your organization is interested in using AxisCare, please contact us. 

Washington

Supported: YES

Washington has chosen to implement an open vendor model in which the state selects a single aggregator (in this case, ProviderOne) while allowing providers to continue using their existing EVV systems as long as it meets federal EVV guidelines.

AxisCare meets state EVV requirements, so providers may continue to use AxisCare as their EVV and management solution. We have also developed an integration with ProviderOne, Washington’s contracted aggregator, which will allow agencies to easily send required visit information.

Virginia

Supported: YES

Virginia has chosen to use an open vendor model in which the state sets the standards for EVV, and providers may either use their existing EVV system or choose one that best meets their needs.

AxisCare has developed a direct integration with Tellus, Virginia’s EVV aggregator, so providers may continue to use AxisCare as their EVV and management solution.

Vermont

Supported: CONTACT US

Vermont has chosen an open model with Sandata serving as the aggregator.  AxisCare has not developed the integration with Sandata for Vermont yet (AxisCare supports Sandata integrations in other states), but if your organization is interested in using AxisCare, please contact us.

Utah

Supported: YES

AxisCare meets the state’s EVV requirements, so providers may continue to use AxisCare as their EVV and management solution. We have also developed an export with UEVV, Utah’s aggregator, which will allow agencies to easily send required visit information. 

Texas

Supported: CONTACT US

Texas has chosen an open model with TMHP serving as the aggregator.  AxisCare has not developed the integration with TMHP for Texas yet, but if your organization is interested in using AxisCare, please contact us.

Tennessee

Supported: NOT AT THIS TIME

Tennessee has chosen a closed model where AxisCare is currently not able to provide EVV data to the state.   Providers can choose to use AxisCare due to the many advantages but you must use Sandata, Healthstar, and Time4Care to collect EVV required data.

South Dakota

Supported: CONTACT US

South Dakota has chosen an open model with Therap serving as the aggregator.  AxisCare has not developed the integration with Therap for South Dakota yet, but if your organization is interested in using AxisCare, please contact us. 

South Carolina

Supported: NOT AT THIS TIME

South Carolina has chosen a closed model where AxisCare is currently not able to provide EVV data to the state.   Providers can choose to use AxisCare due to the many advantages but you must use AuthentiCare to collect EVV required data.

Pennsylvania

Supported: YES

Pennsylvania has implemented an open model in which the state sets the standards for EVV, and providers may either use their existing EVV system or choose one that best meets their needs.

AxisCare meets state EVV requirements, so providers may continue to use AxisCare as their EVV and management solution. We have also integrated with Sandata and HHAeXchange, Pennsylvania’s two EVV aggregators, which allows agencies to easily send required visit information.

Nebraska

Supported: YES

AxisCare meets the state’s EVV requirements, so providers may continue to use AxisCare as their EVV and management solution. We have also developed an integration with Tellus, Nebraska’s chosen aggregator, which will allow agencies to send required visit information.

Oregon

Supported: YES

AxisCare meets the state’s EVV requirements, so providers may continue to use AxisCare as their EVV and management solution. We have also developed an export with eXPRS, Oregon’s aggregator, which will allow agencies to easily send required visit information. 

Oklahoma

Supported: CONTACT US

Oklahoma has chosen an open model with AuthentiCare serving as the aggregator.  AxisCare has not developed the integration with AuthentiCare for Oklahoma yet (AxisCare supports AuthentiCare integrations in other states), but if your organization is interested in using AxisCare, please contact us. 

Ohio

Supported: YES

Ohio has chosen to implement an open vendor model in which the state selects a single aggregator (in this case, Sandata Technologies) while allowing providers to continue using their existing EVV systems as long as it meets federal EVV guidelines.

AxisCare meets state EVV requirements, so providers may continue to use AxisCare as their EVV and management solution. We have also developed an integration with Sandata, Ohio’s contracted aggregator, which will allow agencies to easily send required visit information.

North Dakota

Supported: CONTACT US

North Dakota has chosen an open model with Sandata serving as the aggregator.  AxisCare has not developed the integration with Sandata for North Dakota yet (AxisCare supports Sandata integrations in other states), but if your organization is interested in using AxisCare, please contact us. 

North Carolina

Supported: YES

North Carolina has implemented an open model in which the state sets the standards for EVV, and providers and MCOs may either use their existing EVV system or choose one that best meets their needs.

AxisCare meets state EVV requirements, so providers may continue to use AxisCare as their EVV and management solution. We have also integrated with Sandata, HHAeXchange, and CareBridge, North Carolina’s EVV aggregators, which allows agencies to easily send required visit information.

New York

Supported: YES

New York has implemented an open vendor model in which the state selects a single vendor while allowing providers to continue using their existing EVV systems as long as it meets federal EVV guidelines.

New York has chosen to work with three EVV aggregators: eMedNY, HHAeXchange and CareBridge.

AxisCare meets state EVV requirements, so providers may continue to use AxisCare as their EVV and management solution. We have developed integrations eMedNY, HHAeXchange, and CareBridge which allow agencies to easily send required visit information.

New Mexico

Supported: NOT AT THIS TIME

New Mexico has chosen a closed model where AxisCare is currently not able to provide EVV data to the state.   Providers can choose to use AxisCare due to the many advantages but you must use AuthentiCare to collect EVV required data.

New Jersey

Supported: YES

New Jersey has implemented an open model in which the state sets the standards for EVV, and providers may either use their existing EVV system or choose one that best meets their needs.

AxisCare meets state EVV requirements, so providers may continue to use AxisCare as their EVV and management solution. We have also integrated with HHAeXchange and CareBridge, New Jersey’s two EVV aggregators, which will allow agencies to send required visit information.

New Hampshire

Supported: YES

New Hampshire has decided to go with an Open Model that allows providers to choose their own EVV system, as long as it meets federal EVV regulations. They are in the process of choosing an aggregator system that will accept data from all EVV systems.

AxisCare meets all state and federal EVV requirements, so providers may continue to use AxisCare as their EVV and management system.

Nevada

Supported: CONTACT US

Nevada has chosen an open model with AuthentiCare serving as the aggregator.  AxisCare has not developed the integration with AuthentiCare for Nevada yet (AxisCare supports AuthentiCare integration in other states), but if your organization is interested in using AxisCare, please contact us. 

Alabama

Supported: YES

AxisCare meets the state ‘s EVV requirements, so providers may continue to use AxisCare as their EVV and management solution. We have also developed an integration with HHAeXchange, Alabama’s chosen aggregator, which will allow agencies to easily send required visit information directly to HHAeXchange.