Home Health & Hospice Week

Federal changes for your home health agency or hospice aren't just coming from Medicare -- the Department of Labor could soon make a big difference in your operations.

That's because the DOL's Wage and Hour Division is considering revising the definition of the companionship exemption, which exempts companion aides from Fair Labor and Standards Act requirements for minimum wage and overtime pay. The DOL plans to issue a proposed rule on the matter in October 2011, it says in its regulatory agenda published in the April 26 Federal Register.

"DOL intends to consider whether the scope of the companionship exemption as currently defined in the regulations continues to be appropriate in light of substantial changes in the home care industry over the last 35 years," the agency says in a fact sheet about the initiative.

For one, the DOL wants to look at whether the exemptions should apply to aides employed by third parties (i.e., home health agencies). And the agency wants to take another look at the definition of "untrained" which allows aides to qualify for the exemption.

If the DOL tightens up the training requirement, "it would not take a very high standard to make every companion, home health aide, attendant, etc. of a licensed/certified provider non-exempt,"warns attorney Robert Markette Jr. with Gilliland & Markette in Indianapolis.

The DOL also will examine the amount of household work an aide is allowed to perform and still qualify for the exemption, the fact sheet says.

"The companionship services exemption has been a protracted, hotly contested issue," notes the National Association for Home Care & Hospice. Union organizers have made it a goal to eliminate the exemption for HHA workers.

The result: If the DOL does revise the exemption to exclude HHA employees, workers and patients will be the ones who suffer, Markette maintains. That's because agencies will restrict aide hours and divvy up assignments between more aides in order to reduce overtime exposure.

Or HHAs will pass on higher costs to patients, who will opt to hire aides for fewer hours, Markette predicts.

"Merely increasing costs for the provision of home care services without also addressing the funding for that care would only serve to harm the home care aides and the people under their care," NAHC says.

The DOL also might plan to crack down on misclassification of directly employed workers as contract staff. In an April 22 release, Labor Secretary Hilda Solis lauded two pieces of newly proposed legislation that would increase penalties for misclassifying employees as contract when they are direct.

"One of my goals as secretary of labor is to secure minimum and overtime wages and to help  middle class families remain in the middle class," Solis says in the release. "Working on the issue of misclassification is key to attaining those goals because misclassification of employees as independent contractors deprives employees of critical workplace protections and employment benefits to which they are legally entitled."