Home Health & Hospice Week

Rule will cost employers with no real benefit for workers, experts say.

The Obama Administration is trumpeting the proposed change to the overtime rules for aides, but the truth is the new rule won't help workers much.

That's because if the Department of Labor excludes home health agencies from using the companionship exemption, they will largely avoid triggering the OT pay by limiting workers' hours to less than 40 (see related story, p. 2).

"The real sad part of this is the impact will be felt most strongly by the workers who will have to have their hours cut," notes attorney Elizabeth Zink-Pearson with Pearson & Bernard in Covington, Ky. For payors ranging from private clients to Medicaid programs to be able to afford to pay for aide services, "the only answer will be to assure that workers do not exceed 40 hours of work," Zink-Pearson predicts.

Due to cutting aides' hours, "employees will actually receive less pay than when the exemption was available," explains attorney John Gilliland II with The Gilliland Law Firm in Indianapolis. "When they were exempt from overtime pay, they could be scheduled to work several consecutive days, living in with the client/patient -- working more than 40 hours wasn't an issue." But if the proposed rule is finalized, agencies will "need to keep them under 40 hours in a workweek" to avoid OT pay they and their payors can't cover.

Bottom line: "In an effort to 'help' the employees, DOL actually will cause them to make less money than when the exemption applied to them," Gilliland says.

The DOL is well aware that the rule will produce this result in many cases. "Employees who used to exceed 40 hours of work per week will work fewer hours, transferring income to fellow workers who will absorb the extra hours," the DOL says in its proposed rule.

An alternative: "Employees working greater than forty hours may distribute those hours among multiple employers," the DOL notes. This will be a hassle for aides, who will have to juggle multiple jobs, schedules and clients, observers note.

Clients Will Lose Continuity

Home care agencies and employees aren't the only ones who will lose out if agencies' use of the companionship exemption becomes prohibited. Clients will also see big changes they won't like.

Because clients and their families won't be able to afford OT, they will "have no choice other than to give up the continuity of care now enjoyed," Gilliland says

Present: "With the exemption, an employee could be with a patient/client 24/7 without the overtime pay cost," Gilliland notes.

Future: "Without the exemption, it is unlikely the same caregiver with be with the patient/client for more than two, 24 hour days," Gilliland expects. And even two days can be achieved only because sleep time can reduce the hours worked to below 40 hours for the two days.

End result: "Today, a patient/client can receive most of his/her care from one or two caregivers," Gilliland says. "If the exemption is not available, that will no longer be possible."

The DOL acknowledges in the rule that much of the impact of the rule will be mitigated by HHAs scheduling aides for less than 40 hours. "If there will be so little change, why are these regulations needed?" questions Washington, D.C.-based attorney Elizabeth Hogue.

Home care providers affected by the change should submit comments to the DOL outlining the many problems with the proposal, Hogue suggests. "Better yet, providers should be sure that DOL hears from clients about the adverse impact on them."

Interested parties will have 60 days from the proposed rule's publication in the Federal Register to submit comments. Information on submitting comments is in the rule at www.dol.gov/whd/flsa/CompanionshipNPRM.pdf. You can also submit comments to the Office of Management and Budget on the paperwork burden associated with the proposed rule, the DOL adds in the rule.