New York state Attorney General Letitia James sent a pointed message to home care agencies this week: There’s no place for anti-poaching practices in the Empire State.
The AG’s office fined a Queens-based home care agency $550,000 for signing an agreement with a competitor prohibiting each of the businesses from taking the other’s existing patients. Under an agreement with the state, Marks Homecare must also file annual reports on its compliance over the next five years, and provide antitrust and compliance programming to agency executives and management.
An investigation by the AG’s office found that Martin Ganz, acting on behalf of Marks Homecare, signed an unlawful agreement with another home care agency that on several occasions prevented patients and their caregivers from moving to the company of their choice. Marks and the competing firm also exchanged information on the hourly rates they paid caregivers in an effort to stifle competition.
“By refusing to allow patients to switch providers, Marks Homecare created an unhealthy market that limited patients’ options and reduced caregivers’ wages,” James said in a statement. “We are holding Marks Homecare accountable for deceiving patients and restoring fairness to the home care industry to protect patients and caregivers.”
Marks is a fiscal intermediary that administers caregiver payments for patients enrolled in the New York State Consumer Directed Personal Assistance Program (CDPAP). The program allows patients requiring long-term care to hire a family member or friend to act as their caregiver. Fiscal intermediaries, such as Marks, process timesheets and payments to caregivers and provide other administrative functions on behalf of patients. In a competitive market, patients select the fiscal intermediary that pays their chosen caregiver the highest hourly wage and delivers better services.
The Biden administration has joined some states in a crackdown of antitrust violations and anticompetitive practices that prevent workers from moving to jobs with higher pay in the tight job market. Last summer during a webinar, attorneys for the Polsinelli law firm warned home care agencies to follow best practices by removing any anti-poaching clauses from franchise agreements and other business contracts and avoid any discussions with competitors about staff wages and benefits.