Today, the Department of Health (“DOH”) issued “Wage Parity Compliance and Certification Guidance” (HERE). The guidance elaborates on the wage parity reporting and certification requirements that were passed into law in 2020. In this alert, we summarize the key points from this guidance document.
First Annual Certification is Due to DOH by June 1, 2021
Initially, by way of background, the 2020 Wage Parity Law amendments created new annual reporting and compliance certification requirements. Until today, the State had not disclosed any guidance about these certification requirements and the key question had been: when will the first annual certification, under the new requirements, be due?
Today’s DOH guidance states that by June 1, 2021 (and each year thereafter), all MMCO and MLTC plans, as well as CHHAs, LTHHCPs, LHCSAs and FIs, must submit to the DOH, electronically through the eMedNY Provider Portal, a certification of compliance. Providers that are not currently enrolled in eMedNY must contact the Division of Long Term Care for assistance with completing the 2021 certification through paper submission.
The certifications must be provided by each entity that is enrolled in Medicaid and providing Medicaid-reimbursed services. For integrated companies, or a single company with multiple lines of business, each entity must file a certification.
The certifications must be electronically verified by an “appropriately authorized and knowledgeable executive officer, operator or owner in the organization with actual authority to sign on behalf of the organization.”
MLTC, MCO and CHHA Certification Requirements
For MLTCs, MMCOs, CHHAs, and LTHHCPs, the annual certification will affirm to the following:
- That the services provided by the plan or provider are in full compliance with the Wage Parity Law.
- That no portion of the money spent or to be spent to satisfy the Wage Parity Law “will be returned to the a CHHA, LHCSA, LTHHCP, MMCO, MLTC, or FI, or related persons or entities, other than to a home care aide as defined in PHL 3614-c to whom the wage or benefits are due, as a refund, dividend, profit, or in any other manner.”
- The certification will certify that the MMCO, MLTC, CHHA, or LTHHCP will maintain all records necessary to verify compliance with the terms of the Wage Parity Law for at least 10 years, and that such records will be subject to audit by the DOH and/or its agents for possible retroactive recoupment of Medicaid payments “for services that are determined to be in less than full compliance.” The records that must be maintained include applicable attestations and information from LHCSAs and FIs.
- For certifications beginning June 1, 2022 and annually thereafter, that the MMCO, MLTC, CHHA, or LTHHCP has received, reviewed and assessed the annual compliance statement(s) of wage parity hours and expenses provided by each LHCSA or FI, on DOL Form LS-300, accompanied by an independently-audited financial statement verifying such expenses and DOL Form LS-301.
- Certification that the plan or provider will make a written referral to the DOL for any “reasonably suspected failure” of a LHCSA or FI to conform to the Wage Parity Law requirements. Written referrals will be submitted electronically to the DOL HERE.
In addition, “before June 1, 2022 and annually thereafter by June 1,” covered MCOs, MLTCs, CHHAs, and LTHHCPs providing services through contracts with FIs and LHCSAs will be required:
- To verify that they received an Annual Compliance Statement of wage parity hours and expenses (LS 300) from such FIs and LHCSAs, and
- That such FIs and LHCSAs provided an Independently Audited Financial Statement verifying wage parity hours and expenses (LS301)
The LS300 and 301 forms will be completed for the year preceding the date that the certification is due.
LHCSA and FI Certification Requirements
Similarly to the payors, LHCSAs and FIs will be required to file annual certifications of compliance, and these attestations will contain the same compliance affirmations as those outlined above for the plans and CHHAs, except that except that the LHCSA and FI certifications will also include a statement, effective for certifications beginning June 1, 2022 and annually thereafter, that the LHCSA or FI has provided each MMCO, MLTC, CHHA, and LTHHCP an annual statement of wage parity hours and expenses on DOL Form LS-300, accompanied by an independently-audited financial statement verifying such expenses and DOL Form LS-301.
The DOH’s guidance notes that MLTCs, MMCOs, and CHHAs may continue to require providers to provide quarterly Wage Parity certifications of compliance . These certifications would continue to be submitted to the MLTCs, MCOs, and CHHAs and not the DOH.
Department of Labor Requirements
The DOH’s guidance acknowledges that the New York Department of Labor (“DOL”) has issued “new DOL wage parity forms,” but it does not provide any answers to how providers should fill out those DOL forms.
Please let us know if you have any questions about this new guidance and its requirements, or about wage parity generally.