September 28, 2022

Volume XII, Number 271

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Minimum Wage Increase for Employees of Florida Medicaid Providers

On June 2, 2022, Governor DeSantis signed the “Freedom First Budget” for Fiscal Year 2022-2023 for the sole purpose of increasing the minimum wage for employees and independent contractors of Medicaid providers to at least $15.00 an hour.  The Florida Legislature allocated over $600 million in funding to the Florida Agency for Health Care Administration (“AHCA”) to assist Medicaid providers with this new minimum wage requirement. Those funds will be applied to certain Medicaid fee-for-service (FFS) reimbursement fee schedules and managed care rates.

What is Required?

The new bill (HB 5001 - General Appropriations Act) requires that AHCA enter into a Supplemental Minimum Wage Agreement (the “Agreement”) with each affected Medicaid provider no later than October 1, 2022. Under the Agreement, the provider will attest under penalty of perjury that every employee of the Medicaid provider, as of October 1, 2022, will be paid at least fifteen dollars ($15) per hour. While the Agreement makes reference to “every employee of the Medical provider,” AHCA has clarified that for all providers other than nursing home providers, this new wage requirement will only apply to direct care employees. In addition, note that the new wage requirement will apply to both employees and independent contractors.

What is a Direct Care Employee?

AHCA has defined a Direct Care Worker as an individual that has direct contact with a Medicaid recipient for purposes of providing a Medicaid reimbursable service. Direct care workers do not include individuals who do not provide a Medicaid reimbursable service, whose primary duty is maintaining the physical environment of the workplace, or whose duties are primarily administrative. AHCA provided an illustrative list of direct care workers on its website.

Are Managed Care Plans Covered?

Medicaid managed care plans will be required to enter into an agreement with AHCA to ensure the funds allocated to the plans are used to raise the wages of direct care employees of Medicaid providers. The managed care plan shall also provide an attestation to AHCA that they have amended each provider’s contract reimbursement rate to comply with this provision by January 1, 2023. As a result, managed care plans receiving monies from Medicaid will need to revise their contracts with Medicaid providers to increase the providers’ contracted rates to allow the providers to raise their direct care employees’ wages.

Are There Any Exceptions?

The Medicaid Fee-For-Service Fee Schedules listed below will not receive an increase related to the minimum wage requirement. Florida Medicaid providers who bill exclusively under those fee schedules are not required to sign the Agreement and to pay their direct care employees $15.00 per hour.

  • Behavior Analysis Fee Schedule

  • Community-Based Substance Abuse County Match Fee Schedule

  • County Health Department Certified Match Program Fee Schedule

  • Durable Medical Equipment and Medical Supply Services Provider Fee Schedule for All Medicaid Recipients

  • Early Intervention Services Fee Schedule

  • Medicaid Certified School Match Program Fee Schedule

  • Physician Pediatric Surgery Fee Schedule

  • Prescribed Drugs Immunization Fee Schedule

  • Prescribed Drugs Physician Administered Billing Codes

  • Regional Perinatal Intensive Care Center (RPICC) Neonatal Services Fee Schedule

  • Regional Perinatal Intensive Care Center (RPICC) Obstetrical Services Fee Schedule

  • Targeted Case Management for Children at Risk of Abuse and Neglect

What are the Risks for Non-Compliant Medicaid Providers?

Beginning January 1, 2023, a direct care employee of a Medicaid provider that is not receiving a wage of at least fifteen dollars ($15) per hour may bring a civil action in court against the Medicaid provider and, upon prevailing, is entitled to recover the full amount of any back wages unlawfully withheld plus the same amount as liquidated damages and shall be awarded reasonable attorney’s fees and costs.

In addition, based on information provided by AHCA, providers who fail to sign the Agreement will be subject to recoupment of funds associated with the minimum wage requirement.

Will AHCA Provide More Guidance?

AHCA set up a Frequently Asked Questions (“FAQ”) page on its website. Providers may submit questions to AHCA in connection with this new wage requirement. Questions submitted will be used to update the FAQ page. Providers should review this page regularly for updates and clarifications.

© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume XII, Number 265
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About this Author

 Marisa Rodriguez Wilson Miami Healthcare Attorney Polsinelli
Shareholder

Marisa Rodriguez Wilson is a Shareholder at Polsinelli's Miami office. She represents health care providers and other health care industry entities at both the state and federal level. With a wide-range of experience, Marisa successfully advises clients in with operational and compliance issues, complex regulatory matters and licensing matters. She provides guidance on Medicare, Medicaid, Medicare Advantage and other managed care related matters. Marisa also assists in the sale and purchase of health care entities.

Marisa’s previous experience...

305-921-1803
J. Everett Wilson Miami Healthcare Attorney Polsinelli
Office Managing Partner

Everett Wilson is the Managing Partner of Polsinelli's Miami Office and a Shareholder in Polsinelli’s Health Care Practice Group.  With over 30 years of legal and business experience, his practice is devoted to the representation of health care providers, insurers and other entities involved in the health care industry.

A health care regulatory attorney with a business and finance background, Everett’s focus is on issues related to Medicare and Medicaid managed care, value-based care and risk arrangements, and health care M&A.  The M&A...

305-921-1802
Romain Balard Miami Healthcare Attorney Polsinelli
Associate

Romain Balard is an Associate in Polsinelli's Health Care Alignment and Organization practice. Romain focuses on complex regulatory, operational, and transactional matters. Romain regularly advises health care related businesses and organizations on regulatory and transactional matters, including:

  • General regulatory compliance

  • Compliance with the Stark Law and the Anti-Kickback Statute

  • Licensure issues

  • Medicare and Medicaid...

305-921-1834
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