The Wage Parity Law was amended in 2020 to expressly require MLTCs to “review and assess” providers’ annual compliance statement of wage parity hours and expenses, and to make a written referral to the NYS DOL for any “reasonably suspected” failure of a FI or a LHCSA to comply with the Wage Parity Law requirements. Per these requirements in the law, the DOH had issued guidance elaborating on the MLTCs’ obligation to “review and assess” providers’ LS300 and LS301 forms and their compliance with the Wage Parity Law. In essence, the State – through the Wage Parity Law amendments – had designated MLTCs as the auditors of providers’ wage parity compliance.
Based on plans’ concerns about how much auditing and, more precisely, the extent of auditing that plans would have to do with respect to providers’ wage parity compliance, the DOH recently issued a short Guidance Document that provides:
In response to questions and feedback on the Annual Certification of Compliance with Home Care Wage Parity (the Wage Parity Certification) from Managed Care Organizations (MCOs) that are required to certify under Section 3614-c of the Public Health Law, the Department hereby clarifies that with regard to Paragraph 1 of the Wage Parity Certification an MCO should continue to certify as to whether its payments to contracted providers, including licensed home care services agencies, certified home health agencies, fiscal intermediaries and long-term home health care programs (if any), are in compliance with the Home Care Worker Wage Parity law, and may appropriately continue to rely on sub-certifications issued by, or other information collected from, these contracted providers.
Such certification need not be based on personal knowledge as to whether the compensation paid by contracted providers to their employees is compliant.
This Guidance Document seems to suggest that plans and CHHAs can simply take their providers’ LS 300 and LS301 forms and, based on their providers’ certification of compliance, certify to New York State that the plans’ or the CHHAs’ providers are compliant with Wage Parity. However, CHHAs and plans should be leery about reading the State’s Guidance in this manner. The Guidance does not expressly relieve CHHAs and plans of doing their due diligence on the LS300 and LS301 forms that providers are submitting to the CHHAs and the plans. Critically, the Guidance and the DOH cannot relieve the CHHAs and plans of doing their due diligence on providers’ certification because the Wage Parity Law itself expressly imposes on the payors the obligation to “review and assess” the compliance certifications that providers are submitting to the plans and CHHAs. And, as plans and CHHAs will recognize, ultimately, OMIG and the New York Attorney General Medicaid Fraud Unit can disregard (or interpret differently) this DOH guidance and hold plans and CHHAs fully responsible for not doing enough to audit and evaluate their providers’ compliance with wage parity.
We will seek more guidance from the State on this matter and provide further insights as they become available. In the meantime, however, payors (plans and CHHAs) should prepare for next year’s arduous burden of reviewing and assessing the wage parity information of the home care providers in their network.