UNEMPLOYMENT INSURANCE APPEAL BOARD, DEPARTMENT OF LABOR found that the nurses placed by Mr. Dorvilier are in fact not employees but INDEPENDENT contractors
A.L.J Case No. 099-03419
According to A.L.J Case No.099-03419, Administrative Law Judge JEAN BELL, New York State Unemployment Insurance Appeal Board and Department of Labor ruled that Harry’s Nurses Registry “is an employment agency which contracts with hospitals, nursing homes, and private individuals for the placement of registered nurses, licensed practical nurses and nursing assistants… The employer provides no supervision of the individuals [who] provide their own transportation and supplies and are not reimbursed for any expenses. The nurses provide their own liability insurance and are given no instruction or training by the employer. Each are free to work with various agencies at the same time that she is working for the employer.” (R 591). As a result, the Unemployment Board found that the nurses placed by Mr. Dorvilier are INDEPENDENT contractors.
Judge Mannuel Marks also agreed that the registered nurses are INDEPENDENT contractors.
2019_05_29_12_57_57
Fee-for-service nurses are INDEPENDENT contractors under Medicaid regulation
Audit Report
According to 18 NYCRR Section 517.3(b), “Fee-for-service providers… must prepare and maintain contemporaneous records demonstrating their right to receive payment under the medical assistance program. All records necessary to disclose the nature and extent of services furnished and the medical assistance program. All records necessary to disclose the nature and extent of services furnished and the medical necessity therefore… must be kept by the provider for a period of six years from the date the care, services or supplies were furnished or billed, whichever is later. (2) All information regarding claims for payment submitted by or on behalf of the provider is subject to audit for a period of six years from the date the care, services or supplies were furnished or billed, whichever is later, and must be furnished, upon request, to the department… for audit and review.”
According to 42 CFR Section 440.80, “Private duty nursing services means nursing services for beneficiaries who require more individual and continuous care than is available from a visiting nurse or routinely provided by the nursing staff of the hospital or skilled nursing facility. These services are provided (a) By a registered nurse or a licensed practical nurse; (b) Under the direction of the beneficiary’s physician; and (c) To a beneficiary in one or more of the following locations at the option of the State (1) His or her home; (2) A hospital; (3) A skilled more of the following locations at the option of the State (1) His or her home; (2) A hospital; (3) A skilled nursing facility.”
According to 10 NYCRR Section 85.33(a) and (b)(1) “…Nursing services as medically needed shall be provided to medical assistance recipients in the patient’s home or in a hospital. (b)(1) Nursing care to patients in New York shall be provided by a person possessing a license and current registration from the New York State Education Department to practice as a registered professional nurse or licensed practical nurse.
Abstract of Summary Report of Harry’s Home Care dba Harry’s Nurses Registry
Summary Report
Harry’s has 118 employees on their most recent payroll. They employ 2 HHAs, approximately 10 RNs and the rest are LPNs. All work is performed in private homes. According to bookkeeper, 99% of the patients are Medicaid recipients. The ER has 3 interns and 6 office employees on the premises. All were interviewed. The interns have worked for 2 days and the arrangement appears to be that they w
Legal precedents:
Trauma Nurses, Inc. v. Board of Review
242 N.J. Super. 135 (1990)
576 A.2d 285
https://law.justia.com/cases/new-jersey/appellate-division-published/1990/242-n-j-super-135-0.html
“Based upon the foregoing evidence, the Appeal Tribunal determined that Douglas was an INDEPENDENT contractor and was not an employee of TNI. Specifically, the Appeal Tribunal found that TNI exercised no control or direction over the performance of the nurse’s duties, the nurse’s services were outside the usual course of TNI’s business and the activities of a nurse constituted an independently established business.”
“Finally, we are convinced that nurses are engaged in an independently established profession, as required by N.J.S.A. 43:21-19(i)(6)(C). See David v. Employers’ Mutual Ins. Co., 124 N.J. Super. 377, 380, 307 A.2d 123 (App.Div. 1970), certif. den. 63 N.J. 580, 311 A.2d 3 (1973); Chmizlak v. Levine, 20 N.J. Misc. 339, 340-341, 27 A.2d 629 (Dept. of Labor 1942). Clearly, the independent nature of their profession would survive without the existence of TNI. See Bloom v. Div. of Employment Sec., 69 N.J. Super. at 179-180, 174 A.2d 16. Nurses must fulfill educational and licensure requirements in order to practice their profession. As pointed out in TNI’s brief, they are able to obtain positions either as full-time employees, part-time employees, independent contractors, shift workers, etc. In the context of this case, the individual nurses do not work exclusively through TNI. Instead, most work simultaneously for other brokers, hospitals and health care institutions.”
Long Island Care at Home, Ltd. v. Coke
551 U.S. 158 (2007)
https://www.courtlistener.com/opinion/145717/long-island-care-at-home-ltd-v-coke/
Home healthcare attendants paid by third-party agencies are also exempted from the Fair Labor Standards Act (FLSA)
“The court gave deference to the Department of Labor’s regulation 29 CFR Section 552.109(a), which applies the exemption to employees in “companionship services” who are “employed by an employer or agency other than the family or household using their services.””
“Since the regulation was valid and proper, the Court held, the Fair Labor Standards Act’s (FLSA) “companionship services” exemption continues to apply to workers paid by third-party agencies.”
Harry’s Nurses Registry (HNR), who place nurses in patient’s homes, was exempted from federal overtime. New York State Department of Labor conducted an audit and certified that LPNs are considered domestic service employees under FLSA (when employed in or about private households) and are therefore exempt from Fed. O.T. regs under 13(b)(2l). According to the case of Long Island Care at Home v Coke, it was held that the DOL Regulation was valid and the companionship exemption includes those “companion worker employed by the agency … other than the family or household using their services”. 29 C.F.R. s.552.109(a) The LPNs, who are placed in patients’ homes but not employed by the patients, fall into such category and shall be exempted from federal overtime requirements as well. See again the New York State Legislation S.8637/A.11711 which again stated that agencies under Art. 36 of the Public Health Law are exempted from federal overtime requirement.
Fazekas v. CLEVELAND CLINIC HEALTH CARE
VENTURES, 29 F. Supp. 2d 839 (N.D. Ohio 1998)
https://law.justia.com/cases/federal/district-courts/FSupp2/29/839/2472106/
Defendant Cleveland Clinic Foundation Health Care Ventures, Inc. (“CCFHCV”) CCFHCV is a certified Medicare agency that provides skilled nursing services to patients in their residences throughout greater Cleveland. While employees of CCFHCV, plaintiffs provided home nursing services to CCFHCV patients. Plaintiffs were responsible for assessing, planning, implementing and case-managing home care nursing. Plaintiffs treated home care patients suffering from various serious and/or chronic health conditions, educated and trained these patients in the treatment and monitoring of their conditions and coordinated the treatment of these patients by various other health care providers, including Home Health Aides, Licensed Practical Nurses, Physical Therapists, Occupational Therapists, Speech Therapists and Social *841 Workers. Plaintiffs were responsible in their initial visit with a patient to examine the patient and, based upon the attending physician’s orders and the nurse’s own observations, develop a plan of care. The plan of care generally outlined the treatment the patient would receive, goals concerning the education of the patient and instructions to other health care providers. Plaintiffs were then responsible for making regular visits with their assigned patients implementing the plan of care.
The Court finds that plaintiffs (the nurses) were compensated on a fee basis within the meaning of 29 C.F.R. § 541.313(b). Therefore, plaintiffs (the nurses) fall within the FLSA’s exemption of professional employees and are NOT entitled to overtime compensation under the FLSA.
“Home care nurses brought suit against former employer seeking overtime compensation under Pair Labor Standards Act (PLSA). The United States District Court for the Northern District of Ohio, Patricia A, Gaughan, J., 29 F,Supp.2d 839, entered summary judgment for employer. Nurses appealed. The Court of Appeals, Daughtrey, Circuit Judge, held that nurses, who were paid agreed-upon sum for each home care visit regardless of time spent on each visit, were employed on fee basis and engaged in bona fide professional capacity, so as to be exempt from FLSA overtime requirements.”
As Harry’s Nurses Registry (HRN) (License No 9245L001) is operated under Art. 3, Fazekas is the correct case for Art. 36. The Fazekas stated that home care nurses were employed on fee basis and engaged in bona fide professional capacity were exempted firim the FLSA overtime requirements, where nurses were paid agreed-upon sum for each home care visits regardless of time spend on each visit, written opinion letter of Department of Labor’s Wage and Hour Division indicated that per-visit pay plan would qualify as compensation on a fee basis, nurses’ undisputed deposition testimony demonstrated uniqueness of each home health care visit they made, and their duties required advance knowledge and discretion. {Fazekas v Cleveland Clinic Found. Health Care 204 F.3d 673 (6*” Cir. 2000)
HNR, Inc. is operated under Article 36 of the Public Health law and is fully exempt from Federal overtime requirements. The regulations require the Registered Nurse to comply as set forth in each standard agreement of scheduling of the Registered Nurse of the Home visit who is governed by the 25/15 plan. (See Home Care Service Agency License attached hereto as “J”)
The business nature of Harry’s Nurses Registry (License No 9245L001) is the same as Cleveland Clinic Foundation Health Care Ventures, Inc. and Long Island Care at Home, Ltd..
