Fireside Chat with Angelo Spinola of Polsinelli and Todd Allen, CEO of AxisCare

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Courtney McCormick: Welcome to today’s webinar with access, care, and personality. Personality best practices navigate common and payroll pitfalls the webinar will begin in just a couple of minutes as we wait for everybody to enter.

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Courtney McCormick: Hi, there! Welcome to today’s webinar. We are so excited to be here with you guys today. Thank you for joining us. It’s Pulsinelli and access care. We are here with you today to learn about best practices for navigating common payroll pitfalls. I’m Courtney Mccormick. I’m the director of client success here at access care, and I’ll just be hosting today’s conversation with

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Courtney McCormick: and Angelo and before we get started I just wanted to bring your attention to the QA feature at the bottom of your screen. We’re gonna be hearing a ton of great information today about payroll, compliance, and home care, legal trends which I know will bring up lots of questions. So please just go ahead and drop those questions into the QA. Throughout the webinar. Don’t wait until the end.

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Courtney McCormick: We’re gonna get to as many of your questions as possible. Live here at the end of our time together. And if we don’t get to your question, live on air, then we will make sure to follow up with you guys via email afterward. So today, we’re gonna be covering topics like noteworthy legal trends in home care. Do well audits and how to minimize the risk for your agency.

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Courtney McCormick: And also Angela is going to be giving us a sneak peek into upcoming legislation. So it should be a really valuable hour together. Angela, let me go ahead and toss it over to you. Why don’t you go in and introduce yourself?

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Angelo Spinola: Thank you, Courtney. Good to see. I just did a little scan of our attendees. Good to see some some familiar names, friends, so welcome all, and thank you

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Angelo Spinola: for joining us. It’ll be a fun fun filled hour here. If you don’t know me. My name is Angela Spinola. I work at the law firm of Pulsanelli. We’re a national law firm, and I had the the Home Health Department, the home base care. So that’s home health, homecare and hospice and do a lot of work with a lot of you and really specialize in in this area. So happy to be here. Thank you to access. Care for having me

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Angelo Spinola: at Todd.

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Angelo Spinola: the man the legend you would introduce yourself.

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Todd Allen: Well, you still the words out of my mouth. That’s what I was gonna say about you. Thanks, man. Hi! Everyone good to be with you here today. My name’s Todd, Alan. I’m CEO of access, care, software and I’ve been in this role since 2,013, right when access care launched in earnest to the market and prior to access care, I had a stance in marketing it and finance

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Todd Allen: but when I learned about the homecare industry I found my true passion especially on how I could maybe help move the needle through a quality software product.

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Todd Allen: Cause. Our our goal is to help as many seniors as possible and help you provide the best care. So our company works with over 2,200 agencies in 10 different countries which we’re really proud about. We work with some of the major national brands. From a franchise perspective and independence as well. All the way from recently established to some of the biggest in the nation. And lastly, I’ll just say we help agencies manage and bill to whether it’s private pay Medicaid Ltci and Va

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Todd Allen: so that’s what we do, and that’s who I am. And, Angelo, it’s really great to be with you today and I just wanna get right into it. And as most of you know, Angelo’s Manola is a home care expert, I would say. The home care expert when it comes to legal matters. He’s also my friend. We’ve I’ve known him for maybe 7 or 8 years now, and and everything that he does. I think quality is the the word that follows him. And so hopefully, this webinar is gonna be quality

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Todd Allen: for everyone viewing. So with that, I’ll get right to it. Angelo, thank you.

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Todd Allen: My first question is, I know, Angelo, that a lot of agency owners, they’re worried about what they don’t know right? There’s so many things in the legal landscape that are happening that correct? Frankly, we just don’t have time to keep up with. And so can you share, please, what are some of the recent changes in 2023 that providers need to be aware of.

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Angelo Spinola: Yeah. And and let’s thank you Todd for that at introduction. And I echo the sentiment you are a good friend and a good man, so really happy to be here and be able to do this with you all. And hopefully it is quality. So let’s talk kind of at a macro level. What we’re what we’re seeing kind of what is is happening. You know, one is

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Angelo Spinola: around restrictive covenants. And restrictive covenants are agreements, typically that you have with

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Angelo Spinola: employees that restrict them and their mobility in some way or their their capacity to do something. So a lot of times a restrictive covenant is a non-compete. You see, a non-compete agreement where

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Angelo Spinola: employee cannot go and compete within a territory. Those are normally, you know, pretty narrowly defined.

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Angelo Spinola: you know, by based on the scope of the of the business or the access that that individual had to clients of the business, then you have non solicit agreements where the employee agrees not to solicit

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Angelo Spinola: clients or customers or other employees, if they were to leave so wouldn’t necessarily affect where they work, but who they can take with them. So we’ve seen a real focus, both at a State level and under Federal law and limiting those kind of agreements, making it harder and harder to use those type of agreements or not use them at all. For example, in, say, California,

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Angelo Spinola: a ban, a complete ban on non-competes and potentially non solicits, depending on how you interpret the law or narrowing the ability to use those agreements for just certain types of employees like exempt employees or employees that make a certain

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Angelo Spinola: amount of money. Those type of things. What has happened recently is the Federal Government has gotten in on the act. That’s always been a State

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Angelo Spinola: law issue and driven by State law. So whichever jurisdiction you go to right. The law is going to be different. You’ve got to have a different kind of agreement.

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Angelo Spinola: Well, the Ftc. Has been threatening to ban all non-competes, non-compete agreements specifically in in that group of of restrictive covenants. For all employees. So you couldn’t use them for anyone, and that would include a ban that would be retroactive. So, in other words, if there’s an existing agreement today, that agreement would be

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Angelo Spinola: invalidated, you’d have to tell your employee that that the agreement no longer applies to them right which creates some real issues. Right? If you’ve given somebody consideration for such an agreement, you’ve given them access to information that you wouldn’t otherwise have done.

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Angelo Spinola: I could create a problem. The Ftc. Just recently announced that it was going to wait to vote on. You know their their rule, their proposed rule banning 9 competes until 2,024, which I think is really good

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Angelo Spinola: for the industry and for providers we’ll see where that goes. But hopefully, this stays a State law issue. But relatedly, what we’re seeing some States do as they’re kind of

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Angelo Spinola: being, you know, more restrictive on these kind of agreements, on the ability to use them is they’re applying

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Angelo Spinola: the bans on non-compete, or the restrictions on on non solicits to

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Angelo Spinola: client agreements, client service agreements. It’s sort of non traditional, you know. You see it. No poach kind of arrangements with with franchisees where they say, Yeah, we won’t hire your employees and and and you don’t hire our employees

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Angelo Spinola: things like that where the government is getting very focused on those type of provisions. So with the client service agreement, what you’ve got to be wary of in some jurisdictions, and just keep an eye on this trend.

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Angelo Spinola: The the governments are saying that a penalty provision that basically would not allow your client in a private duty situation to hire away the caregiver.

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Angelo Spinola: That that is a form of a non-compete that is invalid. And we have, you know, places like California. That the Department of Justice in California is actually trying to

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Angelo Spinola: bring penalties fines, for you know those kind of provisions. So there are some alternatives you can use in some places like direct hire provisions, but you should really take a close look at your client service agreement, and how that language is crafted, and make sure that is in compliance with

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Angelo Spinola: the current interpretation of your State’s laws. So that’s one another area. And these are all kind of related to

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Angelo Spinola: what I’d say is, you know, recruitment and retention.

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Angelo Spinola: which is the major issue? Right? That’s everybody’s problem is finding qualified staff. Everybody’s dealing with the shortage of workers

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Angelo Spinola: moving to other industries are just really not being readily available. So we’re seeing a lot of other laws that relate to hiring, and in some cases retention. That are happening at a at a state level. So examples would be things like wage transparency laws. Right? You know, that’s that’s been the the

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Angelo Spinola: the law de jour of 2,023 where states and sometimes cities are requiring you to to provide a range of rates of what you would pay to somebody in a position. And sometimes, you know, this isn’t a job posting, right? Or an interview process. You’ve got to say in advance what the what the

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salary or the hourly rate

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Angelo Spinola: ranges right. These laws are different, depending on

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Angelo Spinola: you know what your jurisdiction is, what the specifics are. But laws like that wage theft type notices ban the box issues around criminal background checks

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Angelo Spinola: even screening like. There’s some laws now of around using artificial intelligence for screening purposes to to identify sort of tells or what what might suggest. Somebody isn’t going to be a good employee. Illinois and New York City now have laws on how you can use those screening tools. So there’s a lot of of goings on

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Angelo Spinola: in the recruitment and retention process that can create real problems

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Angelo Spinola: for providers who are unaware of these new laws in their state. And what what we’re also seeing are what I’ve always referred to is Gotcha claims. And this is not a new thing. This has been a common thing, but it’s more common now.

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Angelo Spinola: because there are a lot more laws now than there were 5 years ago that a lot of providers are not aware of. So then you have a a plaintiff’s lawyer that brings a lawsuit like a a simple example would be.

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Angelo Spinola: wait, staff notice are not having the right job posting, not having the the rates on the job posting. Yeah. Well, typically, there’s a fine that’s associated with that. And that fine

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Angelo Spinola: is going to be

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Angelo Spinola: strict liability. It doesn’t matter if you knew about the law it’s question of Did you do it or not do it. Did you do what you’re supposed to do or not? Did you use the right form? And that creates a nice, easy class action case where the plans. Lawyers say, Hey, you weren’t using the right authorization forms for background checks. You weren’t, you know, providing wait stuff notices, or whatever the case may be, and bring those suits. And then, you know the I know courtney mentioned this. We’re going to talk about it more. The other

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Angelo Spinola: thing that we’re seeing a lot of is a real spike in department of labor investigations. And the Department of Labor is typically finding that most home care agencies are out of compliance. They estimate over the last couple of years in their investigations. 88 of home care agencies have have some violation, some back wages are owed, or record keeping violation, or something like that which has caused the Dol to be

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Angelo Spinola: very focused on our industry.

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Todd Allen: Yeah, that’s really interesting. That’s a perfect segue into my next question. Actually, what what should a provider do if they, you know and I’m gonna say, the dirty word get audited? What’s their first response. And how should they prepare? And what should they be aware of?

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Angelo Spinola: Yeah, so so these these kind of investigations are, you know, I think providers are often caught.

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Angelo Spinola: A little bit, you know, with their pants down right? That happens.

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Angelo Spinola: where an investigator comes in. It’s normally complaint driven.

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Angelo Spinola: So you normally, and and that, by the way, can be a competitor right where a competitor complains and says, Hey, I don’t think that this agency is paying their people the right way. And it’s creating. Yeah, the dool has been talking a lot about level playing fields, right? And what kind of operation

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Angelo Spinola: may be underground, where there’s under the under the table payments, failure to pay overtime independent contractor misclassification, something that causes one provider to be able to to offer lower prices, and and, you know, have a competitive advantage, but by, according to the dol breaking the law, so

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Angelo Spinola: you get a complaint, the do well comes in the complaint may be about on call premiums wasn’t getting paid, or my on call premium isn’t included in my overtime, or something like that.

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Angelo Spinola: The Dol, though, is going to investigate everything. They’re going to look at your exemptions. Are people properly classified as exempt? Care. Coordinators are real focus of the dol right now, where a lot of times care coordinators are treated as exempt when they’re not. If they’re not actually supervising people they will look at all the the

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Angelo Spinola: the pay practices. How you’re calculating over time? Are you paying for all work? Is there any off the clock work which a common issue in our industry, where sometimes, providers are just paying for service time and not travel time

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Angelo Spinola: or time, you know, reviewing care notes and things like that outside of the the service hours. So you know, they’ll look at everything. And a lot of times the provider really isn’t prepared, you know, and when the dol comes in they come in

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Angelo Spinola: hot, they come in, and they want to conduct interviews

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Angelo Spinola: the day that they knock on the door. Yeah, they’re flashing a badge scaring. You know the the provider. It’s normally a receptionist or somebody there that at the office that is unfamiliar with what you rights and and what the dol’s limitations are. You

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Angelo Spinola: can and should tell the Dol to come back later that you will notify the owner and you instruct your people that answer. The phones, and you know, are, are the first contact at the door to always communicate this to the Dol.

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Angelo Spinola: come back.

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Angelo Spinola: Yeah, when it’s a better time. Yeah, we’re in the middle of business right now. It’s not a good, not a convenient time. And the the key phrase there is. It’s an interruption to our business operations.

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Angelo Spinola: You know, and the Dol has to leave. It’s kind of like kryptonite to Superman, or maybe the better way of saying it is is across to a vampire. Right? They gotta go away or garlic garlic. So you know you you want to arm your people with the right information.

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Angelo Spinola: where you know they’re prepared. And then you want to slow the do well down. They’re gonna ask for a tremendous amount of

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Angelo Spinola: documentation. They’re gonna ask for payroll records, tax returns payroll records for 2 years generally. And they’re gonna ask you to produce that within 3 days.

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Angelo Spinola: you should hire an attorney

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Angelo Spinola: that’s qualified to help you. If you get a dol audit, there’s certain things like an Irs audit.

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Angelo Spinola: right? You know other types of things where you can work with an accountant or you can handle them. You know, unemployment a lot of times. You can do that on your own, so long as you understand what what the the trigger points are, what you want to prove. But when it comes to the Dol you really should have counsel supporting you. It makes a big difference. There’s a lot of strategy involved. What you would want your council to do is negotiate.

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Angelo Spinola: you know more time with the dol. Fewer documentation productions, right where we’ll give you samples instead of the full

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Angelo Spinola: set of materials that you’re asking for. and do what you can to limit

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Angelo Spinola: the Dol’s access to your information in your organization because they’re looking at everything. So the more they have, the more likely they’re gonna find you to be in that 88 violators. So a couple of the the things that we’re seeing

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Angelo Spinola: a real focus on. I mentioned the exemptions and care coordinators outside sales or the marketing people are also, you know, a focus when it comes to exemptions, independent contracting and nurse registries, virtual marketplaces. That’s a really, that’s a real focus of the Department of Labor. And then around specific practices, it’s challenging

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Angelo Spinola: for operators because they’re paying different rates. Right? A lot of times. There are different rates that are being paid for the different types of of service, whether it’s live in care. You know, or couples care.

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Angelo Spinola: you know, or it’s a you know, a for home health, you know. Routine visit versus start a cares, or whatever the case may be resumption of care. So there’s all these different rates. It’s a remote workforce. They’re traveling often to multiple clients in the same day. So there’s travel. Time issues. It’s challenging

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Angelo Spinola: challenging to get the overtime right to understand what all the the pay practice requirements are. Show up, pay, split shift all the different things that

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Angelo Spinola: apply in the various states. So you know, you, you want to be really, really careful about what you provide the dol access to?

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Todd Allen: Yeah, yeah, that makes sense. Just in case everyone missed or anyone missed it. Do you mind saying that phrase again, because I think that is very crucial to have when someone calls, what should the first person answer on the phone say, Yeah, you do. You say that it’s an interruption to our business operation. Right? You you. This is not, in other words, not a convenient time, because it’s impacting.

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Angelo Spinola: It would impact our business. You want to come and interview our managers while our managers are working

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Angelo Spinola: right? So you’re gonna have to schedule it. Cause that’s what the Dol likes to do. Is they like to kind of come in, you know, and and surprise you, and get as much information. Walk away with documents if they can. They’ll have that letter that it’s called a 72 h. Notice. They’ll have that with them when they arrive. And slap it on you

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Angelo Spinola: and say, but I will take what we can get now. So you want to make sure that you’re letting them know we’re not going to do anything right now because we this wasn’t scheduled. We didn’t know about it, but we will get with our attorney. We’ll get with our owner. And we’ll get back to you if you give us your contact information

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Todd Allen: that’s awesome. That’s awesome. Thanks for repeating that. You kind of touched on this Angelo on the one side of the same coin. So what not to do. But on the other side of that, what are some best practices that the providers can do to really avoid some of these pitfalls that that you just mentioned.

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Angelo Spinola: Yeah, yeah, yeah, absolutely. So. So,

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Angelo Spinola: you know. One, yeah. The reason that we do like you, you know, we’ve got a real passion for this industry and what you do. And a lot of times we’re talking about smaller providers that, like you said don’t have

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Angelo Spinola: the resources, the time right, the the wherewithal to understand what all the changes are and what the laws require. You know how things work, meaning as much as I speak

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Angelo Spinola: every time I speak. You know there’s a line of people

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Angelo Spinola: they come and talk afterwards, saying I didn’t know that. Are you sure about that you know wh how much time between 2 visits. Is enough time in a day to not have to pay for travel. Time.

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Angelo Spinola: Right? You know that question comes up all the time, and it’s just because there’s what 10 more than 10,000 agencies right? And it’s hard to get everybody. You know a a line understanding what these rules are. So one is really educate yourself right? And you know, let’s talk about a couple of the specific ones, you know that come up all the time you have travel comes up all the time. If you’ve got

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Angelo Spinola: caregivers that are are driving.

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Angelo Spinola: they’re non-exempt, meaning they’re entitled to overtime. If they’re going to multiple sites, whether that’s from your office to the client.

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Angelo Spinola: 2 different clients in the same day. You’ve got to pay travel time, and there is no amount of time

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Angelo Spinola: between visits if they’re in the same day, so it could be a 4 h gap between the 2 visits that would meet you require you not to pay over the travel time, where you can ignore the travel time. And the dol is really clear about that. I’ve got a a, a, an example. So what you want to do

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Angelo Spinola: is work with a video. Make sure that your your your software provider.

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Angelo Spinola: like access. Care, right? Has the ability to track that travel time, even when the visits are not right? You know in line, right? Right? One after the other that you can. Still, you know, establish what the travel time is right. And if some some systems don’t allow you to do that right, they use estimators or ignore

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Angelo Spinola: travel right? They’ll ignore it altogether after an hour. If there’s more than an hour gap 2 h, gap. You don’t want to do that. You also want to make sure that

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Angelo Spinola: you are

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Angelo Spinola: paying the travel over mileage right? If it’s you know. Some say, well, I’m going to pay mileage instead of the travel, and that should be good enough. Mileage is a business expense reimbursement. It’s not time, right doesn’t count as as time worked compensable travel. Time is working time, so you can pay both. In some states you have to pay both

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Angelo Spinola: travel and mileage right? If you have a business expense requirement like, say, Massachusetts, California, right? There’s several states that require you to pay mileage but you are always going to have to pay that travel time. You also want to have a really strong travel time policy

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Angelo Spinola: that will not allow the caregiver to make an argument that the first travel

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Angelo Spinola: or the last travel of the day from their home

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Angelo Spinola: to a a client-site is compensable because they already started working from home right by confirming appointments or reviewing care notes or something like that, right? So we want to make sure that we’ve got the right policies and practices in place that will not allow that kind of argument, or, Hey, I’m on the phone. I’m doing independent work while I’m driving. So you want to have a you know use of cell phone policy and all those things to start to take some of the burden off of

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Angelo Spinola: the employer right where you’ve gotta serve as a big brother. You’ve gotta observe and watch what everybody’s doing, and making sure that they’re not working off the clock or doing these things incorrectly right. You’re putting some of that burden

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Angelo Spinola: on the employee, because you’ve got the right policies and practices that require the employee to give you visibility. So that’s that’s travel. Live in is still a big issue. So with live in, you want to make sure you’re paying hourly rates and not a day rate

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Angelo Spinola: or a reverse engineer day rate. If you’ve got limited, say, well, we’re paying them hourly right, because you know it. Minimum wage plus overtime on a 13 h shift or 16 h shift adds up to this amount. We just always pay them that amount, but that amount doesn’t change, whether they work 3 days, 4 days, 5 days, or 7. Right. That’s still a day range, right? That’s not changing, based on

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Angelo Spinola: the number of hours they work. So there’s ways to prepay overtime. But you really need to think about. Your your live in and live in is a good model. You just have to set it up the right way, and I’ve I’ve never suggested not to do. Live in. Just make sure that you’ve got the agreements in place that allow for you to deduct sleep time

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Angelo Spinola: in places where you can deduct sleep time right? You know what the laws are. We’ve got employees actually recording their time worked right, and that we’re really documenting what we’re paying them, and how but living is is good

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Angelo Spinola: to do you just you need to set it up compliantly, and then the last one I’ll talk about before we move on to other topics is is on call on call. We see a lot of issues, a ton of issues around on call and some of those issues are not paying on call premiums

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Angelo Spinola: the right way, not not including them into overtime.

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Angelo Spinola: So, for example, if you have somebody that works in the office 40 HA week.

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Angelo Spinola: They’re not exempt, entitled to overtime. and they work the weekend on call.

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Angelo Spinola: and they work some hours. Then those hours are going to be overtime hours. They have to be paid at time and a half. and they have to be paid at time and a half.

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Angelo Spinola: the regular rate time and a half. The hourly rate, the regular rate and the regular rate

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Angelo Spinola: includes other types of compensation, including those on call premiums, or any other bonus, right or commissions, or anything like that, that the employee earns that all has to be factored into the

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Angelo Spinola: the regular rate. So a lot of times those on call premiums are excluded from the regular rate. They’re treated separately.

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Angelo Spinola: Or we’re not tracking on call work because they’re getting paid a premium. I just was speaking to somebody yesterday that was doing that and saying, Well, they’re on call premium

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Angelo Spinola: is, you know. That’s how we’re paying them

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Angelo Spinola: for the the hours. Right? It’s the premium. No, you’re you’re paying them the on call premium to be on call right, just like you would a salaried employee, but you still have to pay them for actual hours work again. You want to have a good on call log on call policy if you can use exempt employees

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Angelo Spinola: for on call. That’s probably the best thing to do. You know. That’s that’s a great way of going because you don’t have to track their time. You don’t have to pay them extra. But if you’re using non-exempt employees.

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Angelo Spinola: remember to either include that on call premium

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Angelo Spinola: into the overtime rate, or try to avoid overtime altogether. A lot of our clients,

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Angelo Spinola: will, you know.

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Angelo Spinola: rotate on call. and whoever’s on call gets the day off. We have Friday off and working 32 HA week, so that there’s a cushion of hours. It isn’t going to start triggering over time.

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Todd Allen: So hopefully, I know that’s a lot to cover just a few minutes hopefully. That’s making sense to everybody. Yes, no, it’s so helpful, Angelo, and I think it’s a good time to add the reminder. This is a recording. And so we’re happy to send this out afterwards. But also I hope that you’re taking notes, folks. I mean, this is really good stuff and could save you a lot of heartache down the road. So

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Todd Allen: so you know I appreciate you paying attention. And, by the way, also, last thing, we are having a QA. At the end. So I already see a lot of questions loading up, and so we’ll we’ll run out. So hurry up and get yours in if you want. This is kind of switching gears a little bit Angela. As you look on the horizon, you know what new what new legislation is coming down that could affect us could affect the homecare industry.

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Angelo Spinola: Yeah. So

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Angelo Spinola: there’s a few we we touched a little bit on the Department of Labor. So let’s talk about what the dol

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Angelo Spinola: is up to the

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the DOL.

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Angelo Spinola: Is working on a modified standard for independent contracting that affects our industry

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Angelo Spinola: in a few different ways. One

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Angelo Spinola: you have models that are independent contractor models, and the Dol has been very focused on those models. Like a nurse registry. The virtual marketplaces, consumer directed models. There was just a case

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Angelo Spinola: in California, where La County was deemed the employer of the caregivers because they were supervising caregivers that was under State law, California, IC laws. But there’s a the Dol is is modifying the independent contractor standard

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Angelo Spinola: to make it easier

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Angelo Spinola: to establish that that workers are not independent contractors. Right? If there’s even indirect control

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Angelo Spinola: meaning, you have the ability to exercise control over that worker, even if you’re not using that control. That is a factor towards employment. If this

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Angelo Spinola: new rule goes into effect, which is basically modifications to the

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Angelo Spinola: economic realities test right? So if that were to happen, and we think that it will. You will see an uptick

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Angelo Spinola: even more than we do today, and misclassification claims both from plaintiff’s lawyers

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Angelo Spinola: and the dol. So we’ve we’ve got that you know. We’ve got the equal access to care Cms changes. Right? That’s a oh, one other thing I wanted to mention about the IC rule right? If that changes. That also changes

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Angelo Spinola: the joint employment test that the Department of Labor uses for purposes of determining

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Angelo Spinola: whether a business is a single enterprise, or, you know, can be considered jointly liable for one employee. So you have the statutory employer.

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Angelo Spinola: You have the company that actually, you know, has the paperwork. It is hired the employee. But then you also have, you know, potentially, another employer like in a franchise setting. It might be the franchise, or at least that’s the argument that the franchisor is a joint employer. In a in a owner operator.

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Angelo Spinola: Situation that the owner is personally liable as an employer along with the organization

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Angelo Spinola: in a staffing situation, that the business that is is receiving the staff or being staffed is also the employer and not just the staffing company. We’re seeing a ton of

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Angelo Spinola: of focus on those kind of issues where the dol is actually targeting

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Angelo Spinola: the company that’s being staffed and finding liability, saying, Hey, you were at the ones that were supervising these employees. So joint employment is changing as well, not only with the Department of Labor, but the National Labor Relations Board is changing their standard in a similar way to allow indirect control to be enough

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Angelo Spinola: to move the needle towards joint employment, so that what that means for providers you’ve got to be really, really careful who you partner with. You’ve got to make sure that you’re not supervising other people’s workers.

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Angelo Spinola: right? That if you’re in a franchise model, you’re not asking your franchise or for legal advice or for documentation. That’s actually where you know, Posh, we’ll talk about Posh a little bit later. One of the used cases for Posh, right is to provide resources through a third party vendor. You know us rather than directly from

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Angelo Spinola: the franchisor, and you know subject the franchisee to join employment risk. So you’ve you’ve got those things going on. And then the Cms equal access rule. That’s the one where Cms saying that 80% of Medicaid reimbursements would need to be provided as wages to the workers, and that includes supplemental

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Angelo Spinola: payments. For for personal care. Services. So that’s a major issue. For those who are getting medicaid reimbursements. There were

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Angelo Spinola: the comment period to the change that that rule and the proposed rule

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Angelo Spinola: got more than 2,000 comments. From we we drafted a bunch of them. There’s likely going to be a a coalition. That challenges Cms on this, but a lot of advocacy around around trying to get Cms not to

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Angelo Spinola: regulate this because it just it’s going to be a very difficult thing to come up with one rule

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Angelo Spinola: that applies to all the different Medicaid programs. All you know, in all the different States. So it’s gonna really adversely affect

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Angelo Spinola: providers that receive Medicaid dollars. So that’s one that is is coming on the horizon that we’re really gonna have to really have to pay a lot of attention to and then, you know, the the last thing I’d mentioned is lots of

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Angelo Spinola: These locality laws, state and local laws. I just mentioned the the AI law in New York City, New York City, has been passing a ton of laws. A lot of these laws are specific industry, specific laws, so they don’t get a lot of press.

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Angelo Spinola: And you all don’t. You’re not aware of it. You don’t know that it’s happened, and that the laws in place, and then you get all the lawsuits right? And and that’s how you find out about a new law. Somebody sues you, and it’s a little too late right now you’re you’re you’re paying some kind of penalty for a law you didn’t even know about. So a ton of that at a locality level.

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Angelo Spinola: You know where you see counties and cities

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Angelo Spinola: changing the law at a break, neck pace at a state level where the state is, is adding laws, and even federally, you know, there’s a proposed Federal Domestic Worker Bill of Rights, for example, there are State Domestic Worker Bill of Rights. Jersey is in the process of of implementing one New Jersey, and then there are city ones like in Seattle and Philadelphia, right? So it’s a lot for the provider to keep up with.

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Todd Allen: Yeah.

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Todd Allen: yeah, that’s that’s super helpful, Angelo, in the last couple of minutes before we have what looks to be a pretty robust. QA. What are some practicals that people can do to avoid some of these things? And you know, with the laws constantly changing, can you give some practical tips for folks.

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Angelo Spinola: sure. So what I would say.

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Angelo Spinola: you know. And we really.

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this is this is really been our our focus.

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Angelo Spinola: since we came over to personally, we being my my team, the group of of homecare attorneys is trying to come up with resources and tools to make things as easy as we can

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Angelo Spinola: for providers, right? So that you can focus on your operations. So what I would say, number one number one thing to do

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Angelo Spinola: is make sure that

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Angelo Spinola: consultants you’re working with the software vendors that you’re working with. Right? AI, anything that’s touching your organization when your organization is so highly regulated right

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Angelo Spinola: that that there’s

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Angelo Spinola: industry specific expertise. Right? It’s one thing to be a a good lawyer to be a good software business, right to to be able to run, you know, payroll or overtime calculations, right? Or, you know, have a a travel time program.

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Angelo Spinola: But it’s quite another right to do that for the industry when there are so many industry, specific laws. Right? So make sure you’ve got the right resources that are supporting you. Make sure that you are educated right? And and if if you are not the person, if you’re the owner and like, I don’t have time for this, I’ve got XY. And Z. Appoint somebody else in your human resources. Group

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Angelo Spinola: your administrator whomever it is that you give them the tools and resources they need to, really.

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Angelo Spinola: you know, make make it a yeah. We call them rocks right from from a book that we’re we’re looking at right? But make sure you’ve got somebody that has responsibility for your compliance. Right? Be really proactive on compliance. If if the dol is finding

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Angelo Spinola: 88% of home care businesses have violations. Wh? Where do you sit in there? You know. How do you feel about your compliance? And I would just say that

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Angelo Spinola: don’t feel like, you know you you you have got to have all the answers, or you’ve got to solve everything all at once. Right? A big advocate of arbitration programs to help limit

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Angelo Spinola: your liability, limit your risk right? And and basically putting suspenders on on top of your belt, which is the compliance program. But what you want to do is really triage your issues and figure out, where am I most at risk? Right? And that’s where your industry experts come in of hey, hey? In your jurisdiction

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Angelo Spinola: there’s a lot of lawsuits around live in right? There’s a lot of issues here. And 1 one thing you can predict is, if your competitors are getting sued and you’re on the radar because caregivers they move all around right. And and that’s what the plants lawyers are looking for is a caregiver right to bring one suit, and then to bring that same lawsuit.

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Angelo Spinola: because everybody’s doing it the same way over and over again, just changing the name of the defendant. So make sure that you. You figure it out. You know. Where? Where are my risks? Where do I have a lot of potential liability.

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Angelo Spinola: Yeah, where I can fix it. And many of the fixes are not that challenging to do? It’s the knowledge part you’ve got to know about it in order to fix it right. You’ve got to know that it’s an issue first.

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Angelo Spinola: So that’s where you get your your person that you’re pointing to really help and and and understand what the requirements are. And then you go and start putting these these fixes in place. So you know, II think that focus is gonna be really important over the next several years, as we continue, see the uptick in lawsuits. And and do, well, audits.

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Courtney McCormick: Yeah, that sounds great, Todd, if you don’t mind. I just had a thought there, Angelo, as you’re talking about that. And I’m looking at all these great questions coming in right now.

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Courtney McCormick: I don’t know if either one of you guys want to talk about Posh Angelo. You mentioned Posh, and we have a lot of questions coming in with specific like, Hey, what about this question about North Carolina? And what can I use to research my local industry specific laws. And you know, Posh, it stands for personally online solutions, for home care. And it is something that here in access here we highly recommend. It’s an online subscription platform

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Courtney McCormick: platform. It’s designed to assist home care agencies of all sizes helps. You guys stay compliant with all of these federal state and municipal laws in your industry. So we have a poll for you guys. I know you’ve been listening for a long time. You can get active here for a minute. So if you are hearing all of these things, Angela saying. And, Angela, you mentioned something earlier where you’ll speak to people and get just as

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Courtney McCormick: line. I’ve seen it happen at conferences with you before a line out the door of people saying, you know their specific questions of you know we have them here of like, what about this issue? What about this instance?

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Courtney McCormick: If you are one of those people? That is, these questions are coming up for you specifically, and you need legal help. This is what Posh is for and they can really help you answer these specific questions. So if you’re interested in learning more about getting answers to these questions that have come up. During this session. Then just click that. Yes, button right there, and we can reach out to you. And get you connected.

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Courtney McCormick: Angela, anything else about that? Posh

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Angelo Spinola: industry handbook. And so that’s what I’m trying to do. I don’t know if that’s what I’m trying to do.

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Angelo Spinola: Half of what Posh does is it educates, provides that education where we are saying in layman’s terms. Here are the rules that apply in home care in your State, right? These are the things that you need to do around backgrounds around wait theft and the different things we talked about live in. Can you deduct sleep time? And then the other part is the actual documents right to allow you to

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Angelo Spinola: compliantly operate. And one thing that I wanted to mention that’s very nice is, if you, if you all haven’t been using it access care as a great onboarding platform, where oftentimes our clients will put our materials. The handbook acknowledgments the offer letters right? You know, those type of onboarding materials

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Angelo Spinola: right onto access cares onboarding platform and make it really, really seamless and easy. To utilize those materials. So we’ve been working with with X care for many years, you know, to you know, provide those kind of compliance resources on their on their platform. So they’ve got software. We’ve got the content. And you’ve got the solution.

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Courtney McCormick: Yeah, well, on that note, Angelo, we have actually another poll, a second poll last one for you guys. And this is about access care. So you guys have also had questions about, you know, mileage and that inter-visit travel time on holiday and overtime rates. So that access your software actually has a way that you can enter all of that information in configure one time. So you stay

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Courtney McCormick: compliant. And then, as you schedule everything, you pull a payroll report, and it’s done so every week. You’re not having to keep up with it. It’s already done for you. You keep yourself compliant that one time, and then it’s done for you. So you’re tracking all that inter visit, travel time through that mobile app the caregivers can enter, and they’re mileage separately from during the visit. And it’s all done right there for you. So if you’re not currently in access

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Courtney McCormick: care user and you’re joining us today. Welcome. And if you’d like to learn more about making your life easier with signing up with access care, then just click the yes, button right there. But we are gonna answer as many of your specific questions that came in right now. And we did have a lot of them. So let’s just dive in. We can leave that pull up for a couple of more seconds or minutes, whatever you guys want. Okay, so we have a lot of questions here.

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So let’s dive in the first one that came in. Some of these are specific. Some of them are broad. Let’s start with just a short one. So ftes and the Aca Angel, if we could kind of do as rapid fire as possible. We have tons and tons of questions. If we don’t answer yours live. We’ll get to you in an email afterwards. And yes, we are sending the recording after the webinar like Ftes and the Aca, who enforces this just a basic rundown of the affordable care act and home care.

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Angelo Spinola: Yeah, so this is the this is the the enforcement body. It’s center for Consumer information insurance oversight. CC,

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Angelo Spinola: IIO, and this is this is my promise to you, because the Aca is a one of my clients, said the referred to the other day as the unaffordable Care act. It’s a it’s a a quagmire

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Angelo Spinola: so is what I will promise to do rather than trying to cover that in a question. Now we will in our one of our upcoming industry presentations. We will cover that topic with specificity. Kind of walk through the ins and outs. And what’s an fte? And when does it apply? What is affordable? What’s the offer that you have to give employees, but II would

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Angelo Spinola: not doing it justice to try to cram that in in a couple of minutes. Okay, well, that was submitted by a personality and access care, super fan. So I know he’ll be there

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Courtney McCormick: covered. You got it, Adam? Alright. So here’s another one. What are the record retention requirements around payroll. How long do you need to keep those payroll records? Yeah, great question is going to depend on the state you’re you’re in under Federal law.

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Angelo Spinola: the statute of limitations for, say, a a fair Labor standards act. Violation is 3 years. So you’d want to keep your payroll record for 3 years. But if you’re in a state like New York, which has the longest statute for wage hour violations. Alleged violations. That’s 6 years.

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Angelo Spinola: So you know, it’s typically not going to be longer than 6 years. Generally, it’s not going to be 6 years. Normally, the State laws kind of follow along with Federal. So 3 years in in most jurisdictions. But that’s the type of thing that yeah, there’s a a section there, Posh, that will tell you.

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Angelo Spinola: Answer to that. Wh. What? Around every kind of record, right? That’s just pay records. But there are other records like safety records that you have to keep a lot longer. So it’s important to have a good record retention policy that you give to your your office staff. Make sure that you’re complying with, and I think it’s also important to purge stuff

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Angelo Spinola: when the statute of Limitations has expired. So you don’t leave a lot of stuff sitting around for the government to poke around. And if it’s if it’s not necessary.

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Courtney McCormick: Yeah, that’s great. Now, this one is a little bit more of a scenario this next question. But I actually hear similar things to this. A lot about

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Courtney McCormick: Let me just read it from Medicaid visits. We are reimbursed for specific hours that may or may not align. With what a caregiver actually works. Our caregivers are trained on this, and are told not to clock in early or out. Late, however, some visits can have an unpredictable end time. We typically pay them only for their authorized shift, regardless of their actual clock in or out times as long as we are paying above minimum wage for the actual hours worked. Are there any issues with this approach?

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Angelo Spinola: Yeah, great question. And this comes up all the time. And there are issues, significant issues. In fact, this is what a lot of our litigations are about right. We not too long ago had a a deal

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Angelo Spinola: on a you know transactional project where we were auditing or conducting due diligence on the target on behalf of the buyer, and this came up where we saw all kind of

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Angelo Spinola: time edits where the time was being adjusted to the service hours, and the problem is, is regardless of what you tell the

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Angelo Spinola: clinician or the caregiver about when they should clock in, or how long they should work. So, for example, hey? You’re authorized to work 6 h for this client.

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Angelo Spinola: You cannot be there any longer than 6. You you need to arrive at at at 9 and clock out when you’re supposed to clock out, you know. No, no excuses clock out by 3. They stick around till 3 30, anyway. Well, what we told them not to do that same same analysis when you’re thinking about unpaid, overtime, right? Somebody’s work overtime. They weren’t authorized to do it. You have a policy that says you can’t work

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Angelo Spinola: overtime without authorization. What does that mean that you don’t have to pay them anymore because they didn’t follow your policy. No, you still have to pay them, because the way the law works is

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Angelo Spinola: as long as the work’s performed. regardless of whether it was approved

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Angelo Spinola: right, it has to be paid, and your remedy

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Angelo Spinola: is disciplinary. It’s not to withhold payment. Another one that we see a ton of like that is, you know, or particularly in the home health side of hey? If the clinician doesn’t turn into notes and we can’t build the notes, you know. Are there incomplete? We’re not paying the clinician until we get paid right? Because there, it’s their note. That’s a problem. And that’s also a violation of the law. You always have to pay people

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Angelo Spinola: for their work, regardless of the quality of the work, it might not have been very good work. You still have to pay them for work that was performed in your your remedies. Really in the future, right? What you can do, and whether it’s disciplinary or changing their their pay rate going forward or something like that. But you can’t withhold payments or fail to pay them for work that was actually done.

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Courtney McCormick: Yeah, yeah, that actually comes up a lot quite a bit. So thank you for that clarification. We have a lot of specific examples. Again, I’m going to point you guys to Posh for sake of clarity here, and we’ll answer as many as we can after this. But, some more broad one. Is it okay to pay salaried employees set bonus pay to cover on call time. That’s kind of similar to what you just said.

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Angelo Spinola: So the big question is that I would have is, are they really exempt from overtime? And if they are like a true manager, for example, when by manager we mean that they are supervising, really supervising

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Angelo Spinola: caregivers right. Not a care, coordinator, that’s telling the caregiver where to go, but they can hire and fire and discipline and all that. Then that that person is likely to be executively exempt.

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Angelo Spinola: Then you can do that right. They you can have a salary to true salary, exempt

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Angelo Spinola: employee working on call

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Angelo Spinola: without paying them anything at all if you didn’t want to, right, because the salaries covering any work they perform, and it doesn’t matter if they’re working

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Angelo Spinola: 35 h or 45 h salary stays the same. What most companies do is they pay that on call premium to say, Hey, we want you covering the weekend, but then you don’t have to track and pay additional hours for a salaried employee

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Angelo Spinola: for the non-exempt folks that are entitled to overtime. You do need to track their their hours and make sure you’re paying them proper overtime.

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Courtney McCormick: Right? Okay. So a lot of questions came in when you started talking about mileage and inter visit travel, time travel, paying for travel time. One was, can we apply rounding rules similar to what we do with payroll?

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Angelo Spinola: Yeah, yeah, it does. And

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Angelo Spinola: generally. It depends on the state that you’re in California, for example.

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Angelo Spinola: Yeah, there’s a case that says you can’t round. You can’t round around meal periods. But that application. The reason

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Angelo Spinola: in that case applies, whether it’s travel, time, or start a shift or end shift that California wants you ping to the minute in under Federal law.

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Angelo Spinola: you can round to an extent as long as the impact of the rounding is neutral. That doesn’t or benefits the employee. It doesn’t adversely impact the employee. So as long as that rounding you can’t round like for 15 min up and down the Max is 15 min total, meaning that

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Angelo Spinola: 7 and a half minutes. If I if I clock in it, would would that be 8 49, or 8 50 that rounds down to 8, 45. But if I clock in it

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Angelo Spinola: 8, 55, it would round up to 9. That’s a neutral rounding rule, and the impact should be neutral as well right. If you say to somebody you can’t clock in

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Angelo Spinola: unless it’s, you know, 7 and a half minutes

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Angelo Spinola: before the start of the shift. That’s the earliest you can clock in. That’s no longer a neutral rule.

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Angelo Spinola: You’ve got a neutral application of the rule. But you’re not applying it that way. Right? Yeah, the the technical rule works. But the way that you’re using it doesn’t. I had that case, too.

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Angelo Spinola: So you

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Angelo Spinola: you can technically do that, and I’ll I’ll just cover a couple of these mileage ones, cause I see that there’s a there’s a bunch of them. And this question, whoever you are anonymous attendee.

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Angelo Spinola: You asked the question. Exactly right. Do I have to pay travel, time and mileage in North Carolina? Right? I need to know what state you’re in, and then that will help me know the answer. And your answer is, you have to pay

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Angelo Spinola: travel time in accordance with the rules that we talked about earlier.

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Angelo Spinola: So any any travel in between clients or from office to client in within a day, a day’s work, but not mileage in North Carolina, because the mileage requirement?

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Angelo Spinola: Is it Federal law that’s going to be driven by State law? So so great question. There was this other one, too, about paying nurses that work in the office for their commuting time

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Angelo Spinola: and mileage, and so and remember the travel, time and mileage.

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Angelo Spinola: Well, I won’t say that about miles travel time. If we’re talking about a an exempt nurse, professionally exempt nurse like an Rn. That isn’t paid by the hour, but paid a salary.

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Angelo Spinola: Then you wouldn’t have to pay any travel time right, or a pay per visit. Nurse? Right? That’s exempt, truly exempt. And the visit rate is inclusive of travel and charting, and and and you know all those things. You wouldn’t have to pay extra travel time because the visit rate is paying for that.

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Angelo Spinola: But in this scenario, whether the nurse is exempt or not exempt.

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Angelo Spinola: If they’re just commuting in and out

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Angelo Spinola: of your office to your office, from their home to your office

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would be no

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Angelo Spinola: travel, time, or mileage that would be required. Assuming that that’s a normal commute. If it was not a normal commute like it’s a couple of hours or something.

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Angelo Spinola: you know you would have to pay some travel time there. But you know, if it’s 20 min, 30 min within within an hour, I’d say that varies by jurisdiction a little, too, but as long as it’s an ordinary commute you would not be paying travel time from home to office or office to home.

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Courtney McCormick: Okay? So you mentioned this like 4 h break? And and somebody asked this question here like if they to shift. The ended at noon, the next one that started at 4. Do we pay them travel time from the location they leave from when they are just going, you know. Like, where? How does that work within that 4 h? Break between clients? Right? Is because some of you are thinking about.

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Angelo Spinola: I know enough to to know that

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Angelo Spinola: question that somebody always has in the audience. So

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Angelo Spinola: the way you figure that out is, if the caregiver had left directly

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Angelo Spinola: from Client A to client B. So there’s a 4 h gap. The caregiver could have gone anywhere. They could have gone home. They could have gone to a restaurant, they could have come back to the office, in which case you’re probably paying them the entire time if they’re working. But if they are doing something that’s personal, and they’ve got enough time to engage in personal pursuits.

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Angelo Spinola: so that the only thing that would be do is to travel. Then what you want to do. There is estimate, and I do know, Courtney, that access care as a very good estimator, right for travel time. You don’t have to say it. I already know about it. I love it

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Angelo Spinola: so. It’s very useful in our cases to to be able to say if the caregiver had going directly from client A to client B,

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Angelo Spinola: that would have taken, based on our estimator.

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Angelo Spinola: 5 min, 7 min, 10 min, whatever that number is. That’s what you pay. Now the other question that you’re thinking of somebody out there

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Angelo Spinola: is. Well, what if it’s the same client? It’s a it’s a it’s a split shift, the same client. So they go out from 9 to 12 to Mrs. Smith. They go home, and then Miss Smith needs some more help from 4 to 7. Do you pay travel time in that situation? And that’s actually an open

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Angelo Spinola: question. There’s no hard law on that. I think the answer is, no, that you don’t pay any travel time because there is no travel time.

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Angelo Spinola: You know that that you would calculate between the clients. It’s the same client, same location, and that because that carrier could go anywhere, you know, including next door, where there is no travel time. I don’t believe travel time is owed. Incidentally, I spoke to

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Angelo Spinola: a general counsel of the

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Angelo Spinola: do well in New York about that very scenario years ago, and he agreed with my assessment.

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Courtney McCormick: but then I asked him to put that in writing, and he refused very last question before I close it out. We just have 2 min left here. So quick. Answer, Angelo, this is away from travel time. If the employer is paying for health insurance is that added as part of the employees pay specifically related to that 80 20 rule for Medicaid that’s coming out essentially,

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is insurance. Part of employees pay.

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Angelo Spinola: I believe it is for the 80 20 W. It would not count.

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Angelo Spinola: you know, for example, if you’re paying somebody below minimum wage and then also paying health insurance that wouldn’t, that wouldn’t constitute. It’s separate from

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Angelo Spinola: from wages, but I believe, if I’m not mistaken, I you know, if I’m wrong about this, be good for you to contact me directly, I can tell you, but I believe that you know all the benefits and and all that is included in the 80 rule. With that said, though in the

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Angelo Spinola: the comments, all those comments. There’s a tremendous amount of analysis. Establishing that there’s almost no

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Angelo Spinola: existing provider that would survive that 80 20 threshold, where? Because the 20%

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80 20

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Angelo Spinola: doesn’t count supervision. So you know the what you’re paying in wages to a nurse supervisor training right? Any of your overhead is all part of the 20. And then you’ve got to get your margin in there somewhere, right? Which is in typically the single digits, and it’s going to be in the red if that rule goes into effect the way it it is, particularly in in rural jurisdictions, but pretty much anywhere. And if there’s increases to the rates

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Angelo Spinola: all that’s going to do, is it? It’s still going to be that same ratio of 80 20. So it’s not that that helpful, not particularly helpful. What we got to do is change that that formula altogether.

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Courtney McCormick: Okay, great. Well, we are unfortunately out of time. I know we didn’t even get to maybe even half of the questions here, Todd, any last words from you.

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Todd Allen: No, I just wanna thank you, Angelo, again for you know, the purpose of this was to tee you up, for the folks that either use access, care, or are interested, or just, you know, saw us online about this webinar. And so I think you provided some great content. And I just wanna echo what I think’s already been, said the Posh system. I can’t tout it’s quality enough, and I highly recommend that you look into it

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Todd Allen: for access care users. If you want to find out more about how we integrate, how we partner and handshake with Posh. Please let Courtney know, because, that is a very interesting and powerful connection that we have. And so yeah, last thing, I just want to thank you, Angelo, again and appreciate you speaking to our clients.

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Angelo Spinola: Well, thank you. It’s been a. It’s been a pleasure, and I love it when we see this many questions. That’s always a great sign. I’m sorry we didn’t get to them all. But it’s a great sign that folks are paying attention, and that you know what we are talking about is useful. So thank you all for attending and and access care. Thank you so much for putting this on.

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Courtney McCormick: Yeah, thanks to both of you guys for being here today. All the information like, Todd said. If you have any questions about getting more information about the Posh platform or about access care, or if you’re interested in learning more about something we haven’t mentioned, which is access care payroll where we actually handle all of your payroll for you. Keep you compliant. Just do all of your quarterly annual tax filings for you and everything.

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Courtney McCormick: Just email that email that you see on your screen right now, integrations@accesscare.com. And we are happy to get you guys set up, get you more information with all of that. So have a great day. Thanks. So much for joining us today.

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Todd Allen: Thank you, Courtney.

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Todd Allen: thanks, Angelo bye, bye.