Earned Sick Time Final Regulation Summary and Analysis for Home Care Agencies

June 25, 2015

The final regulations on paid Earned Sick Time were released by the Attorney General’s Office (AGO) on Friday, June 19th with a number of substantial changes from the proposed regulations.   (The AG was charged with developing regulations to implement the new law – which was passed via a binding ballot question in 2014.)

The Home Care Alliance is pleased that most of the association’s comments were taken into consideration and the HCA thanks member home care agencies for their questions, concerns and suggestions. It is such involvement that allows the Alliance to better represent agencies and work for better results through our advocacy efforts.

Below is a basic summary of changes that home care agencies inquired about that were made between the proposed and final regulation.

Additionally, the Boston law firm Donahue, Barrett & Singal posted an analysis available to the public that is an excellent guide to the Earned Sick Time regulations. The Alliance has also partnered with Kurker Paget, LLC on a webinar for HCA members and further details and interpretation may become available.

Summary of Regulation Changes:

Section 33.01: Purpose, Scope and Other General Provisions

  • AGO added that “employees may choose to use, or employers may require employees to use, concurrent earned paid sick time…to receive pay when taking other statutorily-authorized leave that would otherwise be unpaid.”

Section 33.02: Definitions

  • AGO explained that “benefit year” is used interchangeably with “calendar year.”
  • The term “Calendar Year” was simplified to stand for any consecutive 12-month period as determined by the employer.
  • The term “Date of hire” was simplified to mean the employees “first date of actual work.”
  • Much more detail of employees and employers exempt from the law. Clarification that PCA’s are covered.
  • Regular hourly rate is newly defined as “the amount that an employee is regularly paid for each hour of work.”
  • “Same hourly rate” is clarified to mean employees regular hourly rate or, for employees earning varying rates from the same employer, either
    • The wages the employee would have been paid for the hours absent during the use of earned sick time if the employee had worked, or
    • A blended, weighted average of all regular rates over the previous pay period.
    • A clarification made in response to HCA’s comments for employees paid “fee-for-service,” the same hourly rate means a reasonable calculation of the wages or fees the employee would have received for the piece work, service or part thereof, if the employee had worked.
  • A clarification relative to “overtime, holiday pay, or other premium rates” that states “where an employee’s hourly regular hourly rate is a ‘differential rate,’ meaning  a different wage rate paid for the same work performed under differing conditions (e.g. a night shift), the ‘differential rate’ is not a premium.

 Section 33.03: Accrual and Use of Earned Sick Time

  • The AGO clarified that 40 hours per benefit year is the cap under the law. Employees  cannot accrue more unless the employer’s policy allows.
  • Employees accrue sick time only on hours worked, not while on PTO.
  • AGO added “Earned sick time may not be invoked as an excuse to be late for work without an authorized purpose under the regulations.”
  • AGO added “An employee may not accept a specific shift assignment with the intention of calling out sick for all or part of that shift.”
  • AGO added “Employers and their fee-for-service employees may arrange to make up hours during the same or next pay period.
  • AGO clarified “If an employee is exhibiting a clear pattern of taking leave on days just before or after a weekend, vacation, or holiday, an employer may discipline the employee for misuse of earned sick time, unless the employee provides verification of authorized use” under the regulation.

Break in Service

  • Regarding “Break in Service,” the AGO heard the Home Care Alliance’s concerns and shortened the timeline an employee has a right to use any unused sick time following “a break in service of up to four months.” However, following a break in service of between four months and one year, “an employee shall maintain the right to use earned sick time accrued before the break in service” if the unused time equals or exceeds 10 hours.

Transition Year/Safe Harbor

  • AGO clarified the “Transition Year/Safe Harbor” provision for employers with part time staff and per diem staff.
    • These employees must either accrue paid time off at the same rate as covered full time employees or receive prorated “lump sums” of paid time off.
    • If an employee is compensated other than on an hourly or salaried basis, the employee must accrue or receive lump sum allocations based on “a reasonable approximation of hours worked.”

 Section 33.06: Documentation of Use of Earned Sick Time

  • AGO clarified that an employer may require written documentation for an employee’s use of earned sick time that:
    • Exceeds 24 consecutive scheduled work hours;
    • Exceeds 3 consecutive days on which the employee was scheduled to work;
    • Occurs within 2 weeks prior to an employee’s final scheduled day of work before termination of employment, except in the case of temporary employees;
    • Occurs after 4 unforeseeable and undocumented absences within a three-month period.
  • AGO clarified that “health care providers may require employees making any use of earned sick time during local, state or federally declared emergencies to provide written documentation from a medical provider substantiating its use and to follow additional notification procedures set forth by the employer.” The employer may discipline the worker if they fail in this regard.

Fitness for Duty

  • AGO clarified that “an employer may require an employee to provide a ‘fitness-for-duty’ certification, a work release, or other documentation from a medical provider before an employee returns to work after an absence during which earned sick time was used if such certification is customarily required and consistent with industry practice or state and federal safety requirements and reasonable safety concerns exist regarding the employee’s ability to perform duties.”
    • “Reasonable safety concerns” means a reasonable belief of significant risk of harm to the employee or others.

Section 33.07: Allowable Substitution of Employers’ Paid Time Off

  • AGO clarified that “an employer’s own paid time off, vacation, sick leave, or other policy may be substituted for earned sick time so long as 40 hours of time off is provided under the policy, or such lesser amount as each employee might earn if the employer were not using the substitute policy” and the employees can use PTO for the same purposes under the same conditions as outlined in the regulation.

Return to www.thinkhomecare.org.

Input On MassHealth LTSS Sought

June 22, 2015

One of the featured speakers at the HCA of MA Annual Meeting last week was Scott Taberner, newly named MassHealth’s Chief of Behavioral Health and Supportive Care.  LTSS is the new umbrella term under which all medical and personal care assistance that MassHealth clients may need – for several weeks, months, or years – when they experience difficulty completing self-care tasks as a result of aging, chronic illness, or disability.  This includes, but is not limited to, nursing facility care, adult daycare programs, home health services, personal care services, transportation, and assistance assistance provided by a family caregiver.

In his remarks,  Taberner indicated that the Baker administration is launching a major initiative to improve health outcomes for Masshealth clients and make the MassHealth program more sustainable over the long term.  As part of that initiative, considerable attention will be paid to what, how, to whom and by whom, LTSS services are provided.  On his agenda Are: rethinking  how to modify fee for service payment to pay for value and outcomes;  what provider contracting and management arrangements might look like in a Medicaid Accountable Care Organization;  and how, in general, MassHealth can improve the LTSS “experience” of clients and providers.

MassHealth is holding the last of its open public hearings on these topics in the coming weeks.  They are open to any entity to submit comments and suggestions to the team looking at this programmatic area.  Rate increases for all community based services are, of course, at the top of the Alliance’s request list.  We are looking for suggestions from our member agencies –  with a strong history of provding MassHealth LTSS  – for suggestions as to how both rates and programmatic reforms could enhance our capacity to serve MassHealth clients with both medical and behavioral health needs.

We believe this is a unique opportunity to bring forward creative approaches to restructuring the MassHealth home health and home care programs.  Alliance members are invited to submit any and all concerns and suggestions to Pat Kelleher by July 2 for inclusion in our comments.

Fallon Total Care Dropping Out of ‘One Care’ Program

June 18, 2015

The state’s Executive Office of Health and Human Services (EOHHS) announced that one of the three health plans managing health care for dually eligible ages 21 to 64 through the One Care Demonstration Program will be dropping out.

As of September 30, 2015, Fallon Total Care will be parting ways with the capitated financial alignment program, which will leave Commonwealth Care Alliance and Network Health as the remaining plans. Fallon Total Care provides One Care coverage in Hampden, Hampshire, and Worcester counties to approximately 5,475 individuals and represented the second largest enrollment of the three plans. Commonwealth Care Alliance, as of the May 2015 enrollment report, was handling 10,305 dually eligible individuals.

“MassHealth assures members who are currently enrolled with Fallon Total Care (FTC) that we will work hard to ensure as smooth a transition as possible, working with current members, FTC, the other One Care plans, our partners at CMS, advocates, and the One Care Implementation Council,” stated MassHealth in a brief statement. “One Care members will not lose their MassHealth or Medicare, and all members will have continuous access to health care services, supportive services, and medications.”

MassHealth also promised further updates on the transition and did not share any reasoning for Fallon Total Care departing the One Care Program.

Return to www.thinkhomecare.org.

2015 Annual Report

June 17, 2015

The Alliance is pleased to publish its 2015 Annual Report, documenting its achievements, activities, and finances of the Home Care Alliance of Massachusetts and the Foundation for Home Health over the most recent year.

In addition to reading it below, you may download the PDF, or order a free copy via snailmail (supplies are limited).

Return to www.thinkhomecare.org.

View this document on Scribd


Advocacy Alert: Urge FY16 Budget Conference Committee to Support Home Care

June 8, 2015
The House and Senate have formed a six-member “conference committee” that will merge the two budget proposals into a final fiscal plan for the state. Agencies and advocates can help get home care included in the reconciled budget by sending a message to the committee.
Work is ongoing, but must be completed by the beginning of the new state fiscal year on July 1st so time is limited to send an email. The House Conference Committee members are Representatives Brian Dempsey (D-Haverhill), Stephen Kulik (D-Worthington), and Todd Smola (R-Warren) while the Senate  members include Senators Karen Spilka (D-Ashland), Sal DiDomenico (D-Everett), and Vinny deMacedo (R-Plymouth).
Specifically, the Home Care Alliance is pushing the inclusion of a special commission to study state oversight options and minimum standards for private pay home care agencies. The Alliance is also supporting other amendments to expand access to home care services for seniors and also to create a comprehensive and collaborative state plan for Mobile Integrated Health.
The message itself can be viewed before sending and outlines the items that the Alliance is supporting. They include the following:
  • Senate Outside Section 90 as amended: Private Home Care Agency Study
    • Private-pay home care agencies across the state that provide mostly non-medical support services in the home have no state oversight and a study commission is needed to determine the best solution.
    • This commission will make recommendations on licensure standards and potential quality measures that will protect consumers and create a level playing field in the industry.
  • House Amendment #336: Mobile Integrated Healthcare
    • Recognizing the success and utility of existing “community paramedicine” programs on a smaller scale, this language ensures that the Department of Public Health and stakeholders in the public safety and healthcare communities convene to determine the best possible model of “mobile integrated health” for Massachusetts.
  • Senate Amendment #747: Expanding Eligibility for Home Care Services
    • This language raises the Elder Affairs home care program income eligibility limit to 300% of the federal poverty level ($35,010 in CY 2014), and requires all home care enrollees who are not on MassHealth to make a copayment towards the cost of their services on a sliding fee basis.
    • The program currently has a top income limit set at 224% of the FY 15 federal poverty level ($26,561). Raising home care to 300% of FPL allows the program to serve the “near poor” who are currently excluded.

Return to www.thinkhomecare.org.

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