MACH CDS Providers:

This information is being provided for informational purposes only and should not be construed as legal advice.

As you are aware, the minimum wage will increase to $15.00 per hour effective January 1, 2026. Within the CDS program, there are longstanding gray areas related to employer responsibility. MACH continues to encourage providers to operate their CDS programs in a manner that avoids being deemed a joint employer.

Although CDS regulations identify the consumer as the employer, experience has shown that providers are often viewed by the Department of Labor or the courts as joint employers. There is significant ambiguity in this area, including within the DOL itself. Interpretations of joint-employer standards also tend to shift with changes in administration. We have seen litigation brought against CDS providers where, even when the consumer is clearly identified as the employer, the provider is also pursued—often because the provider is viewed as the party with financial resources.

We consistently encourage members to structure their CDS programs to minimize joint-employer risk. A provider may be considered a joint employer if it shares or co-determines one or more essential terms and conditions of employment, including:

1. Wages, benefits, or other compensation

2. Hours of work and scheduling

3. Assignment of duties

4. Supervision of performance

5. Work rules, instructions on how duties are performed, and discipline

6. Hiring and discharge

7. Working conditions related to safety and health

These areas highlight where gray zones commonly arise. For example:

• Wages (#1): While the state establishes reimbursement rates and providers may offer consumers a pay range, this practice can still create a connection to wage determination.

• Scheduling (#2): Providers should avoid managing schedules. While providers are responsible for ensuring consumers do not exceed their authorized monthly units, any scheduling adjustments should be handled by the consumer in coordination with the attendant—not by the provider.

• Supervision (#4): Regulations require providers to conduct periodic check-ins with consumers to confirm services are being delivered appropriately; however, this requirement can also blur the line between oversight and supervision.

We are aware that some CDS agencies in the past, or currently, do not provide consumers with the option to pay up to minimum wage. With the upcoming increase to $15.00 per hour, we may see more agencies consider this approach as reimbursement rates have not increased accordingly. As a result, I contacted the Missouri Department of Labor to request clarification regarding minimum wage and joint-employer considerations within the CDS program.

Below are my questions and the Department’s response. As you will see, they addressed minimum wage requirements but did not provide guidance regarding joint-employer status.

Ultimately, operating below minimum wage is a risk-based decision. I strongly recommend that you consult with your legal counsel to review joint-employer doctrine and assess the level of risk you are willing to assume—whether from state or federal DOL enforcement or from potential litigation brought by an attendant.

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MACH Email to MO Department of Labor:

To Whom It May Concern:

I am requesting clarification regarding the Missouri Consumer Directed Services (CDS) program and its minimum wage obligations, which I would like to share with our membership.

 As the CDS consumer is designated as the “employer,” please confirm whether a consumer whose annual gross income is less than $500,000 is exempt from Missouri’s state minimum wage requirement. Additionally, are there any concerns that a CDS provider agency could be considered a joint employer, which would trigger application of the state minimum wage?

Thank you in advance for any clarifications.

Thanks

Carol

Carol Hudspeth

Executive Director

MO Alliance for Care at Home

2420 Hyde Park, Ste. A

Jefferson City, MO 65109

573-634-7772; fax 573-634-4374

carol@mocareathome.org

www.mocareathome.org

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Response from MO Department of Labor:

Good day,

Regarding your email, in a CDS relationship, we consider the employer to be the consumer/person receiving care services, and the person providing the care services to be the employee of the consumer. As CDS is a Medicaid program with income limits that are far less than $500,000.00 annually, we apply the provisions of §290.500 (3)(m), RSMo, which excludes from the definition of an employee an individual that is employed by a service or retail business with annual gross sales or business done of less than $500,000.00, to any employment relationship, as service or retail business is not defined in the statute. In addition, the provisions of §290.500 (3)(f), RSMo, which excludes from the definition of an employee an individual that is employed on or about a private residence on an occasional basis for six hours or less on each occasion, can also apply if a CDS caregiver works six hours or less each day, as the statute does not further define occasional basis.

Due to these exclusions to the definition of an employee, the minimum wage and overtime requirements of Missouri minimum wage law are not enforced by the Missouri Division of Labor Standards for a CDS employment relationship.

 Thank you,

James Sebourn     

Wage and Hour Investigator

Division of Labor Standards

573-326-9011 | james.sebourn@labor.mo.gov

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Again, this information is being provided for informational purposes only and should not be construed as legal advice.