Home Health & Hospice Week

Labor Law:

FLSA Home Care Rule Causes Multiple Problems, GAO Report Finds

Companionship exemption elimination brings unintended consequences.

Back in 2015, the Department of Labor began enforcing the so-called Home Care Rule, which eliminated the companionship exemption to minimum wage and overtime requirements. But that change didn’t bring the rise in home health aide pay that policymakers were hoping for, a new report shows.

Some of the actions state Medicaid programs took in response to the rule included limiting hours for workers and changing which services they furnished, the Government Accountability Office says in “Observations on the Effects of the Home Care Rule.” Aides are more likely to have full time jobs, but haven’t had a corresponding compensation increase, the GAO adds.

The result has been aides working for more employers on a part-time basis and Medicaid beneficiaries having more trouble finding workers, the GAO found in interviews with stakeholders.

“Neither workers nor consumers benefited to any degree by requiring home care employers to pay overtime without any additional remedial actions,” judges National Association for Home Care & Hospice President William Dombi. “The GAO analysis shows that workers’ pay has not increased, patients have more difficulty accessing care, state Medicaid programs are restricting the hours an individual can work, and home care programs have been eliminated because of this ill-advised rule change.”

Dombi adds, “NAHC strongly supports better compen­sation for the invaluable home care aide workforce. However, this rule change caused more harm than good because state Medicaid programs have not stepped up with improved payments and no consumer protections have been instituted, such as tax credits, to offset higher costs of care for the private pay patient.”

Policymakers will need to figure out a solution as the nation’s demand for home care workers grows. “Employment in home care is projected to grow nearly 40 percent over the next decade to meet demand from an increasing population of older adults and people with disabilities,” the GAO notes in its report.

“Perhaps now policymakers will take the necessary steps to improve care access and to achieve respectful wages to caregivers,” Dombi says.

State Gives Aides $1,500 Hazard Pay

The worker shortage has only gotten worse under COVID-19. The story of an Indianapolis home care worker shows the risks during the pandemic.

In March, aide Sue Williams-Ward took a job with agency Together We Can for a $1 per hour raise, reports The Guardian newspaper. TWC began paying $13 an hour after it started losing aides when COVID-19 began.

Williams-Ward served patients without protective equipment, which she told her husband she’d repeatedly requested from the agency, according to The Guardian. Williams-Ward contracted the virus, spent six weeks in a hospital, including weeks on a ventilator, then died of COVID-19.

“During the pandemic, home health aides have buttressed the U.S. health care system by keeping the most vulnerable patients — seniors, the disabled, the infirm — out of hospitals,” the newspaper says. “Home health providers scavenged for their own face masks and other protective equipment, blended disinfectant and fabricated sanitizing wipes amid widespread shortages. They’ve often done it all on poverty wages, without overtime pay, hazard pay, sick leave and health insurance. And they’ve gotten sick and died.”

The newspaper interviewed multiple home care workers who said they lack PPE. “I can’t afford not to work. And my clients, they don’t have anybody but me,” one worker told the paper. “So I just pray every day I don’t get it.”

In Virginia, the state government is trying to help stem aide shortages. Gov. Ralph Northam (D) has announced $73 million in CARES Act funding to “provide hazard pay to home health personal care attendants who served high-risk populations during the early months of the COVID-19 pandemic,” according to a release.

How it will work: “A one-time, pre-tax payment of $1,500 will be available to an estimated 43,500 home health care workers who provide personal care and who served Medicaid members between March 12 and June 30, 2020,” the release explains.

“Home health care workers are often unseen, unsung, and underpaid, but they do the vital work of caring for vulnerable Virginians,” Northam says. “Their jobs put them at higher risk during this pandemic, and this hazard payment is a way we can acknowledge that they put themselves in harm’s way to help others. I want to thank our home health care workers for the work they do every day to keep people healthy.”

“Home health care workers are unsung heroes even in the best of times, and the pandemic has put them at higher risk and under greater stress,” Del. Mark Sickles (D) says in the release. “This hazard payment is a way to show these workers that we value them and the essential work that they do.”

Note: The 45-page GAO report is at www.gao.gov/assets/720/710192.pdf.

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