State Mandate Threatens Over 1,300 Healthcare Jobs

01.20.2017
Issues & Policies

A battle pitting personal privacy rights and a state-mandated Medicaid fraud protection program is holding the jobs of more than 1,300 home health aides in the balance.
Companions & Homemakers Inc. argues that the Department of Social Services’ Electronic Visit Verification system could violate employee rights to protect their personal data because it asks for five digits of their Social Security numbers.
But the state says the information sought from caregivers is to ensure they are not double billing through two different employers for the same time period.
DSS informed Companions & Homemakers via a Jan. 3 letter that its enrollment in the Connecticut Medical Assistance Program will be terminated as of Feb. 3.
That means some 1,350 home health aides could be out of a job—and the clients they serve, who rely on them, and with whom they have developed relationships, will have to get new aides from a different provider.
“Over the next month, DSS will be working with our ‘access’ agencies to transition Companions & Homemakers’ Medicaid clients to other home-care agencies,” DSS said in a statement.
“It is important for the Department to stress that DSS clients will not lose services. The department is working diligently to ensure a smooth transition with no interruption to care.”

Privacy Issues

However, at a judge’s suggestion, the two sides are currently in mediation. The decision by DSS to remove Companions & Homemakers from the program has been put on hold while an agreement is sought.
The state says the verification system will save between $8 million and $14 million annually in Medicaid claims by creating a more accurate billing system.
DSS said it was following the law in its request for the last five digits of a caregiver’s Social Security number.

Companions & Homemakers' attorney David Denvir

Current federal and state laws require that employers record actual hours worked, placing Connecticut mandates in direct violation.

“State law provides protection for employee individually identifiable information except where disclosure is required to comply with federal, state, or local laws, or regulations or in response to a government audit. State law…authorizes DSS to implement the EVV system,” the DSS said.
Companions & Homemakers argued against the requirement because its workers would be made to submit personal information to a third-party vendor hired by the state.
The company is concerned whether there are oversights to prevent its employees from being victims of identity theft.
“No homecare employers in the state, nor any state agency, has a direct contact with the vendor, which has prohibited negotiation of service provisions assuring information security and response protocols for data breaches or other problems,” David L. Denvir, attorney for Companions & Homemakers, wrote in a Dec. 29 letter to DSS Commissioner Roderick Bremby.

Wage and Hour Violations?

Denvir also argued that the verification system violates state and federal wage and hour laws. The system requires aides to check in electronically—via telephone–when they arrive at and leave a client’s home.
“Connecticut’s EVV program does not record actual hours worked by live-in homecare employees, eliminating a worker protection that assures they are paid for all hours worked,” Denvir wrote.
“Current federal and state laws require that employers record actual hours worked, placing Connecticut EVV mandates in direct violation of that requirement.”
But the DSS said its verification system “was never designed as a payroll system nor has it been presented as such.”
“Companions & Homemakers has provided no basis for their assertion that utilizing EVV would preclude them from recording the actual hours of their employees through other means to comply with the Department of Labor regulations.”
Companions & Homemakers further argued that the electronic verification removes an employer’s right to control employee wages and information.
“[T]here is no clearer function of EVV than to capture essential payroll and Medicaid audit data in the form of time worked and tasks performed,” Denvir wrote.
He said the verification system “removes each of those functions from employers and gives them to a vendor, who has a contract with another vendor, who has a contract with the state.”
In the Jan. 3 letter, John F. McCormick, director of the Office of Quality Assurance for the DSS, did not address any concerns raised in Denvir’s letter but did inform Companions & Homemakers that it was being removed from the program.
More than 400 agencies across Connecticut provide home healthcare for more than 16,000 Medicaid clients.
Companions & Homemakers is the only provider to notify DSS that it declined to participate in the verification system, DSS said.

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