(Revised 12/01/2024 ML# 3885)
The FLSA Final Rule recognizes the unique nature of programs in which the care provider and the eligible individual live together and have pre-existing family ties or a pre-existing shared household. There is both a familial or household relationship and an employment relationship.
The US Department of Labor Fact Sheet: Application of the FLSA to Domestic Services states the following. “In recognition of the significant and unique nature of paid family and household caregiving in certain Medicaid-funded and certain other publicly funded programs, the Department has determined that the FLSA does not necessarily require that once a family or household member is paid to provide some home care services that all care provided by that family or household member is part of the employment relationship. Where applicable, the Department will not consider a family or household member with a pre-existing close personal relationship with the individual to be employed beyond a written agreement developed with the involvement and approval of the program and the individual (or the individual’s representative), usually called a plan of care, that reasonably defines and limits the hours for which paid home care services will be provided.”
When an individual is eligible and chooses family home care, family personal care, live in daily rate personal care funded under the Home and Community Based Services (HCBS) waiver, Service Payments Elderly and Disabled (SPED), or Medicaid State Plan - Personal Care (MSP-PC) the HCBS Case Manager must complete a person-centered plan of care and a service agreement with the eligible individual and their legal decision maker, when the live in paid care provider has a close personal relationship with the eligible individual in need of care.
A close personal relationship includes relative providers and individuals who had a close personal relationship with the eligible individual prior to paid care being established. Examples include but are not limited to relatives, significant other, or former spouse.
Under these programs, the services to be provided and the number of hours of paid services are described in the plan of care, which is based on an assessment of the services the eligible individual requires and is eligible to receive. The person-centered planning process will determine the number of hours care will be provided. That information will be used to create the service agreement which covers the scope of the employment relationship, and the services paid under the state and federally funded HCBS. Additional services that are provided beyond the number of hours listed in the service agreement are not reimbursable hours but “natural supports” because of the familial or household relationship.
Live-in Paid Caregivers
Live-in relatives meeting the definition of family member under subsection 4 of N.D.C.C. 50-06.2-02 are not eligible to provide Waiver Personal Care service. This service is provided under Family Personal Care.
Exceptions may include:
Consideration may be given if the live-in family member does not qualify for Family Personal Care because they are providing less than 3 hours of care per day.
If an outside provider is the primary caregiver and the live-in-family member provides supplemental cares only, the live in family member provider may be eligible to receive WPC unit rate services limited to the cap for live-in family providers with prior approval of Program Administration.
If program administration approves the live-in family member for WPC unit rate service, the number of reimbursable hours of care cannot exceed 10 hours per day. The live-in family member provider may provide more care than 10 hours, but the State is not obligated to pay because that care is being provided because of their close personal relationship and that they share a household with the eligible individual.
Individuals who are hired to reside in the same household and provide care to an eligible recipient as a paid caregiver are not considered to have a close personal relationship with the eligible individual for purposes of the FLSA Final Rule.
The Maximum number of hours of care per day that can be paid under Family Home Care, Family Personal Care and SPED-PC Daily Rate is 10 hours.
The maximum number of hours of care per day that can be paid under Waiver Personal Care – unit rate and Medicaid State Plan -personal care (unit rate) is 12 hours unless prior approval was granted by HHS.
Potential Exclusions from Overtime Payments:
Complaints of Fraud:
If a Qualified Service Provider (QSP) is subject to an open complaint involving a credible allegation of fraud, overtime payments may be withheld until the complaint investigation is complete. Overtime payments will only be released if the complaint is not substantiated, or the number of actual hours worked is not in question.
Outstanding Balances:
Providers with outstanding balances owed to the Department may have overtime payments garnished to settle the balance unless a pre-established payment plan is in effect.
Claims Not Supported by an Authorization:
Overtime will be denied if submitted claims exceed the specified scope and/or duration of services outlined in the pre-authorization and service agreement. Claims must align with the authorized service parameters to be considered for overtime payment.
Safety Considerations for care providers:
HHS Adult and Aging Services Section has determined that personal care exceeding 12 hours per day could be considered unsafe if there is only one Individual QSP authorized to provide that amount of care each day. We recommend that no more than 12 hours of personal care be provided to any one eligible individual by the same Individual QSP when daily care is necessary to ensure health and safety.
HCBS Case Managers have been instructed to include a minimum of two Individual QSPs in these situations so the workload can be shared unless an exception was granted by the Department.
If an exception has not been granted, and an eligible recipient does not want to use an additional provider to receive care beyond the 12 hours of authorized care that information should be documented in the PCP and the risk assessment. In these situations, HHS Adult and Aging Service section is not obligated to authorize additional hours to the chosen QSP. Services may be impacted if the individual is not in agreement with the plan of care.
There may be circumstances where unit rate QSPs may provide more than 12 hours of care per person (or more than 12 hours combined if serving multiple individuals) only if it is determined that the amount of care they are providing ensures the health and safety of the eligible individual(s). The case shall be staffed with case management and program administration for consideration of an approval exception. Unit rate providers must continue to utilize EVV and are subject to audit.
Payment including overtime pay may be denied if a provider exceeds a safe working duration for the individual and the case manager has not received approval for an exception in the person-centered care plan to exceed 12 hours of care per day.
Failure to Submit Documentation:
Payment for overtime may be denied if a provider fails to submit requested service documentation.
Inadequate Documentation:
Overtime payment may be denied if a provider fails to maintain service documentation meeting the Department's outlined requirements.
Service Documentation
Qualified Service Providers (QSPs) are required to maintain required documentation of services provided to eligible individuals. The purpose of this documentation is to verify payment requests and support the quality and integrity of services provided.
The specific elements required in these records are detailed in the provider handbook and must include:
Individual's name
Individual's ND# (North Dakota ID number)
Provider name
Provider number
Service location
Date of service
Time services started
Time services ended
Authorized tasks completed
Documentation Format:
Written or electronic documentation of daily services is mandatory and must be completed when services are provided to ensure accuracy.
Providers are encouraged to refer to the provider handbook for comprehensive documentation guidelines and to ensure compliance with these requirements.
Timely Submission of Overtime Claims:
To facilitate the prompt processing of claims and subsequent overtime, claims for overtime should be submitted within 3 months after the delivery of services.
Audits
To ensure clients are receiving the services they need and to ensure the services provided meet standards set by the Department, HHS may complete an audit of any individual who submits claims for overtime.
All QSPs who submits claims for more than 80 hours of care in a week may be subject to an audit of their records.
QSPs will receive a notice of audit via email and mail. It will outline the nature of the audit and any findings. It will include information on how to request a review of the audit if the findings are disputed by the provider.
Sanctions
If HHS finds that any payments made to the QSP were inappropriate the Department may request a refund or file adjustments to recoup funds.
The QSP will receive an email and a letter stating the circumstances around the adjustment and providing the opportunity to set up a payment plan for the balance owed to the Department. If a payment plan is not set up within 30 days of the notice, the Department will proceed with the adjustment.
If it is found that a QSP is not in compliance with the department due to the following examples, all money paid to QSP may be recoupled:
Failure to keep appropriate records.
If you did not provide the service
Billing over the authorized amount or billing the wrong code.
Billing for an authorized task that is utilized in an unreasonable time frame.
Failure to comply with a request to send records or information.
Photocopied records, indicating service records were not completed at the time of service.
Other good cause
Formal Review
If a provider is denied overtime, they will receive a denial letter outlining the dates of service overtime was denied and the reason overtime was denied.
The provider may request a formal review of the denial of overtime payments.
A Formal Review may be requested if you disagree with any action regarding provider reimbursement. Per ND Admin Code 75-03-23-12, to request a formal review:
Submit a formal written request in writing within 30 days of notification of the adjustment or request for a refund. The notification of adjustment may be contained in the remittance advice or included in a document sent to you by the Department. Within 30 days of requesting a review, provide to the Department all documents, written statements, exhibits, and other written information supporting your request for review. A provider may not request a formal review of the rate paid for each disputed item. The Department has 75 days from the date we received the notice of a request for review to make a decision.
Qualified Service Provider (QSP) Service Agreement -Live In Paid Care Givers Policy Exceptions:
All live in caregivers who have a close personal relationship to the eligible individual who are currently providing daily unit rate services should be switched to a daily rate. However, service agreement policy exceptions may be granted by Adult and Aging Services on a case-by-case basis to ensure the health and safety of eligible individuals and access to care in the most integrated environment.
If an eligible individual was receiving one of the affected services before March 1st, 2024, and the new policy might significantly change their service cost, making it hard for them to access care, they will be allowed to keep their current rate without any changes. However, a daily rate and service agreement should still be established.
Eligible individuals who are using MSP-PC and the QSP is a relative do not have to move to FPC, they can choose what service best meets their needs.
If more than one live in QSP is an authorized provider do not use a daily rate. The services should remain as unit rate.
If an eligible individual needs less than 3 hours of care per day, do not set up a service agreement or authorize FPC. These services should be set up as daily rate personal care under the applicable funding source and a service agreement would be established.
For example, if an eligible individual needs less than 3 hours of care per day, what used to be FHC (with a low daily rate) would now be SPED daily rate PC.
Another example, if an eligible individual lives with their chosen QSP but needs less than 3 hours of care per day, what used to be FPC (with a low daily rate) would now be MSP-PC.
All MSP-PC service providers who have a close personal relationship with the eligible individual are not required to use FPC and remain eligible for MSP-PC. Live in caregivers of this service still need a service agreement and must be switched to the daily rate for easier billing and to comply with FLSA.
Live in caregivers will no longer be subject to EVV for these services. Daily rate QSPs will be allowed to attendance bill in Therap. FHC and FPC providers can continue to use paper/atypical claim forms or bill through the MMIS portal.
The daily rate for Family Home Care is set at a flat rate as established by legislative action. The number of reimbursable hours of care for this service cannot exceed 10 hours per day. The provider may provide more care than that, but the State is not obligated to pay because that care is being provided because of their close personal relationship.
To avoid overpayments to live in providers of eligible individuals who need minimal daily care, recipients who need less than 1 hour of care should be switched to SPED-PC daily rate.
This service must be billed using attendance billing documentation.
This service must be billed using attendance billing documentation.
The daily rate for Family Personal Care is set at a flat rate as established by legislative action.
To avoid overpayments to live in providers of eligible individuals who need minimal daily care, recipients who need less than 3 hours of care should be switched to MSP-PC daily rate.
The Family Home Care and Family Personal Care QSPs use the paper atypical forms or the MMIS portal for billing.
Two Live-in Providers for One Individual
If an individual is pre-approved to receive care from more than one Family Home Care or Family Personal Care provider: the “Number of Hours of Care Provided Per Day” listed on the QSP Service Agreement does not have to be split between the providers. The full hours of daily cares are listed for each provider, not to exceed the maximum. While both providers are providing daily care, they are not allowed to bill for the individual on the same date of service.
For Example: Due to the needs of an individual, it is approved for two Family Personal Care providers to both provide care to an individual. Both may provide daily cares, yet each bill different days out of the month.
Service documentation for the providers must reflect the actual time and tasks provided by each of the providers for the dates of service.
Live-in Providers Caring for more than on HCBS Recipients
If a live-in provider under Family Personal Care, Family Home Care, Medicaid Waiver Personal Care Daily, or SPED or MSP Personal Care Daily is approved to provide live-in daily care to more than one service recipient, the “Number of Hours of Care Provided Per Day” listed on the QSP Service Agreement must be split between the total number of live-in daily care service recipients.
The reason the time is split between the participants is because a provider is limited to the maximum of 10 hours per day of HCBS services. The time is split between the two authorized participants for a total of no more than 10 hours per day.
The ratio of the split in time should be split by the ratio of time that service is provided to each participant.
Example 1: One individual may require 7 hours of care and the other individual may require 3 hours per day, the time would be split to reflect this need.
Example 2: If a provider is authorized for two Family Home Care recipients and both are assessed at needing the maximum of 10 hours of care per day, each individual’s service agreement would list 5 hours per day.