Home Health & Hospice Week

Start tracking hours carefully.

The day many home health agencies were hoping would never come is at hand.

Recap: On Aug. 21, the U.S. Court of Appeals for the District of Columbia overturned an earlier federal district court ruling that had invalidated part of a new Department of Labor rule eliminating the Fair Labor Standards Act overtime exemption for home health agency workers. The rule would not allow home care workers employed by a third party to qualify for the companionship exemption to overtime and minimum wage requirements. Then, plaintiffs in the lawsuit, including the National Association for Home Care & Hospice, petitioned the Supreme Court to hear an appeal in the case and asked the appeals court for a stay, which would have postponed the Oct. 13 implementation date for elimination of the companionship exemption. On Sept. 18, the court denied the motion, so NAHC and its co-plaintiffs asked the Supreme Court for a stay while it decided whether to hear the case.

Chief Justice Roberts has denied the application, NAHC reports. “This means that the challenged rules will go into effect on or about October 13, 2015,” the trade group says. NAHC and its co-plaintiffs are “evaluating further litigation options in the case” with “the remaining option [to] ask the Supreme Court to hear the case on the merits while the new rules are in effect.” NAHC is also still pursuing legislative relief, but “it is highly unlikely that such relief will occur prior to October 13,” the trade group notes.

Do this: Home care providers “affected by the new DOL rules must implement whatever actions they have planned in order to achieve compliance,” NAHC advises.

Heed these tips from labor law experts to steer clear of compliance and compensation troubles when implementing the change:

• Don’t delay. “Start your compliance efforts for paying your caregivers and live-ins pursuant to minimum wage and overtime pay requirements as non-exempt employees,” advises Eileen Maguire, attorney with Gilliland Maguire Harper in Indianapolis.

You should eliminate use of the exemption by Oct. 13, stresses Elizabeth Zink Pearson with Pearson Bernard in Edgewood, Ky.

• Ignore the grace period. The implementation date for this regulation was Jan. 1, 2015. DOL has said it won’t enforce the new requirement for about a month after the Oct. 13 date, Maguire notes. But “while DOL does not intend to pursue retroactive application for paying back wages, we cannot say for sure if plaintiffs’ attorneys will not try and sue agencies using the January 1st date or how a Court might rule on this type of claim,” Maguire cautions.
• Limit OT. To minimize your financial exposure, limit aides’ hours to make sure they don’t go over 40 per week. Pearson suggests aiming to keep hours — including travel and any other countable activities — in the 34-to-36-hour range to provide a safe margin of error.

This may require more real-time tracking of hours worked, among other data, observers expect.

• Inform staff. “Check your state laws with respect to how much notice you need to give caregivers before making any changes to their wages,” Maguire recommends. That notice may have to be in writing. “You will want the roll-out of any changes [to go] as smoothly and as positively as possible, especially if caregivers will have reduction in hours and/or pay,” she cautions.

Downside: In some states, providers may be subject to unemployment costs due to the change, Pearson warns.

• Inform clients. “Follow your Client Service Agreement with respect to giving notices to clients about changing your fees to help cover the new wage expenses,” if that applies, Maguire says. Only give aides more hours if the private pay client agrees beforehand to pay the OT expenses, Pearson counsels.