Home Health & Hospice Week

DOL replaces rule provisions that federal court invalidated.

Background: Last month, the U.S. District Court for the Southern District of New York found portions of the FFCRA invalid — including the definition of “health care provider” that specified which employees were not eligible for expanded leave under the law (see HCW by AAPC, Vol. XXIX, No. 30).

“The original definition of ‘health care providers’ was very broad, including almost everyone employed at a health care facility,” notes attorney Jeffrey Polsky with law firm Fox Rothschild in San Francisco, in online legal analysis.

Under that definition, “it was fairly clear that all sectors of home care were subject to the exemption, including nurses, therapists, and home care aides,” says the National Association for Home Care & Hospice. After the New York federal court handed down its decision, it was much cloudier which employees were exempt and which weren’t.

On Sept. 11, the DOL Wage and Hour Division “posted revisions to regulations that implemented the paid sick leave and expanded family and medical leave provisions” of the FFCRA, it says in a release. The revisions in the WHD temporary rule address a number of points, the most important of which for home health and hospice agencies is revising the definition of “healthcare provider” that the New York federal court invalidated.

The temporary rule published in the Sept. 16 Federal Register includes a “new, narrower definition of potentially exempt ‘health care providers,’” notes attorney Elizabeth Stock with law firm Bricker & Eckler in Cincinnati. Due to the narrowing of the category, “health care employers … should take special note,” Stock urges in online analysis.

Reminder: Section 3105 of the FFCRA allows “employers to exclude employees who are ‘health care provider[s]’ … from eligibility for expanded family and medical leave and paid sick leave” under the law, WHD says in the temporary rule. “The Department understands that the option to exclude health care providers … serves to prevent disruptions to the health care system’s capacity to respond to the COVID–19 public health emergency and other critical public health and safety needs that may result from health care providers … being absent from work.”

The New York ruling told WHD it has to consider the employee, rather than the employer, when determining who is excluded from the exemption. This revised definition does the job, WHD maintains: An “employee who is capable of providing health care services, meaning he or she is employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.”

The rule lists a number of employee types that are explicitly included in this definition, including nurses, nurse assistants, medical technicians, and laboratory technicians who process test results necessary to diagnosis and treatment.

It also lists a number of employee types that would not be included, and thus would not be exempt and would be eligible for FFCRA leave, including “IT professionals, building maintenance staff, human resources personnel, cooks, food services workers, records managers, consultants, and billers.” Those staffers “are not health care providers even if their services could affect the provision of health care services,” WHD instructs.

In: Under this rule, “it appears quite clear that nursing, therapy, and medical social work employees are exempt,” NAHC concludes. “Further, it also appears likely that home health aides, home care aides, and personal care attendants are exempt provided those employees work under orders from or [are] supervised by a physician, non-physician practitioner, nurse, or therapist,” the trade group adds.