Upstate Federal Court Holds Fiscal Intermediary a Joint Employer of Personal Assistants

Executive Summary. Until last week, no New York court had ruled on the question whether a fiscal intermediary (FI) participating in New York’s consumer directed personal assistant program (CDPAP) was a joint employer of a consumer’s personal assistants (PAs). New York’s CDPAP regulations made FIs responsible for certain administrative and compliance functions, but it also prohibited FIs from recruiting, hiring, firing, training, supervising and scheduling PAs or managing the consumer’s care. Though the U.S. Department of Labor (USDOL) and states other than New York have recognized that FIs could choose to operate under the “vendor fiscal/employer agent model,” where the consumer is the sole employer of the PAs, New York had left this issue for decision by the courts. The decision in Hardgers-Powell v. Angels In Your Home LLC, 2019 U.S. Dist. LEXIS 16315 (W.D.N.Y. Jan. 30, 2019, No. 16-CV-6612-FPG) is the first to hold that an FI is a joint employer of personal assistants. Its rationale and logic are troubling. If the decision’s holding is adopted by other courts, FIs will face serious exposure on multiple fronts, as we explain below.