Home Health & Hospice Week

Fair Labor Standards Act exemption invalid, court rules.

If you don't want to pay unnecessary overtime, stay on top of developments in this legal case.

A regulation applying the "companionship services" overtime exemption under the federal Fair Labor Standards Act to agency-employed home care aides is invalid, a U.S. court of appeals said last week.

The exemption has been used by home care agencies to provide regular hourly wages, rather than overtime compensation, to aides who work more than 40 hours in a week. The court, the U.S. Court of Appeals for the Second Circuit, reheard the case after the U.S. Supreme Court earlier this year reversed the Second Circuit's previous similar ruling and remanded the matter back to the appellate court for further consideration.

If the Second Circuit's decision ultimately stands, HHAs within the court's jurisdiction--New York, Connecticut, and Vermont--will be required to pay home care aides and personal care workers overtime compensation.

The decision would also apply to any party that employs aides, except those that employ the aide directly for their own services, says the National Association for Home Care & Hospice.

The next stop for the case is likely once again the U.S. Supreme Court, says NAHC. • Sept. 1 marked the mandatory effective date for Medicare's new home health advance beneficiary notice (HHABN).

Download the forms in English or Spanish at www.cms.hhs.gov/BNI/. To access forms and directions, click on the dedicated link on the top left-hand margin: FFS HHABN.

Questions? CMS is directing home health agencies with questions to contact their regional home health intermediary.

Update: CMS officials speaking at the Aug. 15 Home Health, Hospice & DME Open Door Forum indicated that they would update HHABN instructions to include the Spanish language phrases for use with Option Box 1. • Dr. Mark McClellan announced his resignation as CMS administrator on Sept. 5, saying he will likely step down by early October.

McClellan, a physician and an economist, was sworn in as CMS administrator in March 2004. He supervises Medicare, Medicaid and the Children's Health Insurance Program, which together provide care to more than 90 million Americans, at a federal cost of more than $550 billion a year.

McClellan has been a proponent of pay-for-performance programs within Medicare and he has overseen the implementation of Medicare's new Part D prescription drug benefit.

A replacement for McClellan has not been named, but potential nominees include CMS Deputy Administrator Leslie Norwalk and Herb Kuhn, director of CMS' Center for Medicare Management. • The Deficit Reduction Act and its new capped rental provisions for durable medical equipment, prosthetics, orthotics and supplies (DMEPOS) don't apply to enteral and parenteral nutrition pumps, said Joel Kaiser of CMS, speaking at the Home Health, Hospice & DME Open Door Forum on Aug. [...]