Breaking News on Home Care Worker Overtime Rule
LeadingAge NY is advising our home care and managed care members of late breaking news regarding the new Department of Labor (DOL or the Department) regulations that would have extended federal overtime and minimum wage pay to home health care workers for the elderly and disabled employed by third party businesses come January. Yesterday, a federal district judge in the District of Coumbia overturned the new rules.
In granting summary judgment to the plaintiffs, the Court found that the Department was trying to “legislate” by adopting a regulation that has been unsuccessfully pursued in Congress for several years, and that the rule would have a “destabilizing impact” on the entire home care industry and adversely affect access to home care services for millions of elderly people.
LeadingAge NY is now in the process of evaluating what this court ruling means for the Jan. 1, 2015 implementation of the new overtime standards. We will be advising members as soon as new information is available. LeadingAge NY conducted a webinar earlier in the month for members on this topic and briefly discussed the pending lawsuit. In the meantime, there is additional guidance on the implementation of the new standards, should they go forward, that providers should keep in mind.
The U.S. GAO conducted a study on the DOL new home care rule because older adults and people with disabilities are increasingly receiving care at home, and home care workers are performing increasingly skilled duties. As we previously reported, DOL recently revised its FLSA regulations to extend minimum wage and overtime protections to more home care workers. According to GAO, the Home Care Rule, scheduled for next month, may affect a diverse set of stakeholders, including home care workers, consumers receiving home care services, private home care agencies and State Medicaid programs. GAO was asked to assess the potential effects of this rule.
Included in the report, GAO examined: 1) changes DOL made in the Home Care Rule and factors it considered during the rulemaking process; 2) the potential effects of the rule identified by key stakeholders; and 3) steps DOL has taken to help State Medicaid agencies and other stakeholders understand and comply with the Home Care Rule.
Their recommendations include that the Secretary of Labor takes steps to ensure the agency will be positioned to conduct a meaningful retrospective review of the new rule at the appropriate time.
From the U.S. Dept of Justice and the Department of Health and Human Services, they have issued a letter in which they cite: " the importance of ensuring adequate workplace protections for home care workers, who provide critical services to millions of Americans. At the same time, it is important that states implement the Department of Labor’s rule in ways that also comply with their obligations under Title II of the Americans with Disabilities Act (ADA). In particular, because home care workers, such as personal care assistants and home health aides, often provide essential services that enable people with disabilities to live in their own homes and communities instead of in institutions, states should consider whether reasonable modifications are necessary to avoid placing individuals who receive home care services at serious risk of institutionalization or segregation." The letter continues citing the potential violation of Olmstead if it fails to provide community services, or reduces services, in a way likely to cause a decline in health, safety or welfare leading to an individual's eventual placement in an institution. In the same letter it mentions the consumer-directed home care program and the issue of a joint employer role.
Last week the Deptartment of Health (DOH) posted a cover letter, the application for the Consumer Directed Personal Assistance Program (CDPAS) FLSA Pool Participation and Questions and Answers on the FLSA Pool. The applications were due to DOH by Dec. 19. According to DOH, this was an effort to mitigate the subsequent impact to consumers, and as a result, DOH set aside temporary funding through the Balancing Incentive Program of $5 million.
LeadingAge NY and the Home Care Association (HCA) of New York State conducted a joint survey of its members and communicated to DOH our initial findings and funding amounts to mitigate its impact on patients and providers. The eight question survey asked for the potential funding amount to cover the costs to managed care plans and home care providers to pay for overtime and other administrative costs. LeadingAge NY continues to advocate for additional funding to cover the costs associated with this new rule.
The questions on how this new home care rule will impact providers continue, and of course the legal decision discussed above adds another element of uncertainty. Should the rule move forward, we have been in discussion with the U.S. Dept of Labor to conduct a webinar for our members in January 2015. The New York State Association of Health Care Providers, Inc. (HCP) and LeadingAge NY would be conducting this webinar jointly.
Several scenarios are possible at this time, including the federal government seeking a “stay” of the decision while an appeal is heard. There are also issues around how narrowly the court is defining the various levels of home care services being provided. We anticipate some rapid developments on this over the next few days and would advise members to stand by as the fall out from decision is fully worked out.
Contact: Cheryl Udell, cudell@leadingageny.org, 518-867-8871