Home Health & Hospice Week

Outcome could change the way you staff.

Ready to dig deeper to cover your aides' paychecks? There's a chance home health agencies could have to as soon as this summer.

The U.S. Supreme Court on April 16 will consider the case--Evelyn Coke v. Long Island Care At Home--one of the highest profile attempts to end employers' exemption from paying workers overtime in certain cases.

The Supreme Court decision will affect all agencies nationwide.

"I'd like to be a fly on the wall," says Elizabeth Zink-Pearson, an attorney with Pearson & Ber-nard in Covington, KY. "I think it could go either way at the Supreme Court level."

Background: For more than a quarter century, home health agencies have employed what's known as the "companionship exemption" to the Fair Labor Standards Act, which governs, among other matters, overtime pay.

In July 2004, the U.S. Second Circuit Court of Appeals said the exemption did not apply to aides employed by third parties such as home health agencies. That means that the decision would have the effect of requiring HHAs to pay overtime to aides who work more than 40 hours per week. Individuals hiring aides privately could still claim the exemption, according to the appeals court.

Rocky legacy: Ever since, that ruling has been challenged and reviewed. On Jan. 23, 2006, the U.S. Supreme Court accepted an appeal of the Second Circuit's decision in the case, quickly vacating it, and remanding the case to the Second Circuit for reconsideration.

Last summer, the Second Circuit upheld its earlier decision, though holds and other legal actions have since stalled the application of the decision.

A good chance: Many, including Zink-Pear-son, believe the Supreme Court likely will overturn the Second Circuit's decision. In part, that's because the decision has less to do with the fairness of doling out what's due home health aides--and more to do with the intricacies of how regulations in general are interpreted and applied.

Added benefit: If the Supreme Court does overturn the decision, there could be a shift within the Wage and Hour division of the U.S. Department of Labor (DOL).
 The DOL could respond by taking aides off the list targeted for compliance audits, says Zink-Pearson. Stay Tuned For More Cases Though the Supreme Court decision this spring will resolve the Coke case once and for all, don't let your guard down. Challenges to the companionship exemption on other legal grounds are likely to persist, says Jennifer Milligan, attorney with Gilliland Markette & Milligan in Indianapolis.

Timeframe: The court is likely to issue its decision in June after commencing work in the case in April, says Peter Notarstefano, director of home and community based services for the American Association of Homes and Services for the Aging.