Many people are wondering how a proposal to end a federal “exemption”for personal care attendants and home care aides will end up affecting the costs for clients and employment home health care laws for employers.
In a presentation to home care employers, attorney John Gilliland tried to stress that while major changes may be in store, agencies will be able to adapt.
“This wont put you out of business,” he said, clients will still need help. A sad, unintended consequence is that the higher costs associated with the changes will force some seniors into skilled nursing homes rather than aging in place at home.
A proposal by the U.S. Labor Department would end an exemption that allows employers to not pay overtime to “companions” who provide care in someone’s private home. This exemption has allowed longer shifts, such as 12 hour shifts and “live-in”, where the caregiver spends 24 hours in the home, but generally sleeps eight hours a night.
The proposed change would also mandate that caregivers be paid minimum wage, something that’s already law in California.
Gilliland said that there are 17 states across the country which have already eliminated the exemption and companies and clients have adjusted.
For live in care, he said, clients will be given a choice: Do they want continuity of care with one caregiver for most of the week at a higher rate, or do they want costs lowered by having multiple caregivers in the home working less than 40 hours total?
Archana Acharya, an attorney with Murphy Law Group in Los Angeles, said of the proposed changes, “It’s a grey area right now.”
Hypothetically, in California, here is how the rule change for live in care may play out. Right now families are charged a basic rate for 16 hours of work, provided the caregiver gets 8 hours of sleep, five of those hours uninterrupted. The average rate in San Diego County is $200 – 240 per day for that service.
Under the new plan, if a family wants more continuity of care, for a 24 hour “live-in” shift, they could expect to pay a regular rate for the first 8 hours, time and a half for the second eight hours, and double time for the last four hours, adding up to sixteen hours per day of work. Eight hours of sleep time could be deducted from the employee’s pay and the client’s costs, if the employee actually got 8 hours of sleep. The costs to the client would likely be as much as $300 a day.
Another requirement of the proposed rule change is that records must be kept of any interruption of sleep time. Employees would have to keep a time sheet noting any reason for waking up overnight. In California, if an employee gets less than five hours of uninterrupted sleep, they must be paid for all 24 hours. It’s at that point that the costs would skyrocket for clients, and it would probably be less expensive to move into a nursing facility. Worst case, the client would likely be charged roughly $455 a day. (These are averages only, based on current law and what changes may happen.)
Gilliland points out that these rules would apply not just to home care agencies, but also to so called “registries” which act as a match-making service between clients and caregivers. And he said the restrictions are so strict that families who hire people directly to care for loved ones will face the same rules.
For example, a family that hires someone to provide “fellowship and protection” would not be able to have that same person cook regular meals, or provide regular showers, or keep a particular schedule of care and still not pay overtime. The person would not be able to perform housework that benefits other members of the family, for example, vacuuming the home or cleaning the restrooms. The person would also not be able to do things like blood pressure checks. Families that hire directly to avoid paying the overtime rules and have the employee provide regular baths or cook regular meals could be subject to lawsuits or claims by the private employee.
Finally, he said even if an employee who provided live-in care only provided “fellowship” and didn’t do any personal care, there is still the chance that the employee would not be exempt from the new federal rules if that employee participated in interstate commerce. So what does “participating in interstate commerce mean”? He says if the employee uses gloves purchased from another state, or takes notes on paper that crossed state lines, the employee would no longer be exempt from the regular wage and hour rules, including overtime.
The reality is these changes would affect everyone: caregivers, employers, families who hire privately and registries. If the changes become law, it will take time and probably a couple of legal tests before a new method of operating care in the home becomes normal.
Gilliland says one things that can be expected is higher administrative costs and also higher recruiting and training costs, as more employers need to hire more caregivers, rather than have a fewer number of caregivers work more hours.
Contact At Home Nursing Care for quality home care assistance in San Diego County and Los Angeles County.