Making an educated choice about hiring in home care requires knowing the rules, the risks and how to mitigate them. This applies to families and professionals, such as fiduciaries – advisers hired by clients or appointed by the courts to oversee a person’s financial, health and living affairs.
Fiduciaries have an added potential liability in that they may be considered “co-employers” if they exercise any supervision or direct any of the care being provided in the home.
This was the theme of a presentation given by At Home Nursing Care founder Lauren Reynolds and attorney Elizabeth Murphy at the 22nd Annual PFAC (Professional Fiduciary Assocation of California) Conference in San Francisco.
It’s a conference dedicated to giving fiduciaries the tools to protect seniors and the vulnerable.
The number of people using nursing facilities, alternative residential care places or in home care services is expected to jump from 15 million in 2000 to 27 million in 2050.
Among people who reach age 65, more than two-thirds will need long term care in their life time, and an American turning 65 years old today will incur $138,000 in future long term care costs such as in home care.
The most common diagnosis for residents of Nursing homes is Alzheimer’s/Dementia. The diagnosis most commonly seen for in home care is diabetes.
Since January 1, 2016, home care providers have required a license under the Home Care Services Consumer Protection Act. There are two licenses that apply – a non-medical home care license issued by the California Department of Social Services (CDSS), or a home health agency license issued by the California Department of Public Health. Our agency, At Home Nursing Care, has both licenses.
Under the CDSS license, home care aides must be registered, which includes a background check that goes backwards indefinitely, in sharp contrast to the more established practice in California of going back 7 years for a criminal clearance. The requirements also include a TB test and initial and annual training.
The unintended consequence of this requirement has been a shortage of qualified caregivers to provide in home care. Many aides cannot pass the background test due to mistakes they made 20 to 30 years ago, such as a DUI or shoplifting as a teenager. So far 7,700 in home care aides have requested “exemptions” from the CDSS rules. Home Care Providers have been requesting that the CDSS change their rules because so many aides have now gone underground, working privately under the table with little protections for seniors. Many previous home care companies are now calling themselves “employment agencies” or “referral services” to get out of having a license at all.
Also – the CDSS license does not require that home care providers conduct any supervision of the aides that they place with clients. In contrast, under the CDPH rules, a home health agency must send an RN or LVN to supervise aides in the home at least every 62 days.
Scope of Practice:
Another common misconception is that in home care aides can do nursing types of services, such as dose medications, fill pill boxes, inject insulin, administer feedings through a G-tube or J-tube, or provide wound care. All of these activities fall out of their scope of practice. Both the CDSS and CDPH only allow medication reminders, or assistance with self-administration of medications. Our policy is to have our RN fill pill boxes, or to send an LVN to handle skilled nursing services, never a caregiver.
Wage and Hour:
Anyone who exercises control over the work performed with in home care may be liable as a co-employer if a dispute arises, and wage and hour technical violations are a common area of legal action. Fiduciaries and families should remember that overtime for a caregiver begins after 9 hours in a day and 40 hours in a week. In California, every single employee is entitled to paid sick leave, even someone working for a private family. The amount of sick leave depends on where the work is being performed, as many cities such as San Diego, San Francisco and Emmeryville, for example, have different sick leave laws than the state standard.
Also, in home care providers are entitled to meal and rest breaks, unless what’s called an 80/20 rule is followed. This rule is that the caregiver, while providing in home care, must spend 80% of the time on activities that directly benefit the client. This means activities such as housekeeping should not take up more than 20% of the caregiver’s workload. This should be tracked, because a violation can lead to a penalty of one hour for each meal or rest break missed going back four years. It should also be expressed in an employment handbook and on the care plan that the in home care provider follows.
Cameras in the Home and Video:
Cameras are everywhere, including in client’s homes. We are seeing a growing number of families in stall cameras to try to protect their loved ones, including inside and outside. The new Ring door bell system is an example of this. It records based on motion detector those who approach the front door. But beware of the California Privacy Act. It prohibits wire tapping, eavesdropping, opening mail or envelopes of another person without consent. Violating this act is a misdemeanor.
Attorney Elizabeth Murphy points out that written notice is required. If there is a camera in use in a home, it must have a legitimate business reason and can only be in work areas – not areas such as a bathroom, unless there is a court order. Written notice can be simple, however, a sticker that says “Smile, you’re on camera”, or a notice at the front door stating, “Welcome, security cameras in use.”
As an agency, we notice about 25% of our At Home Nursing Care clients have cameras installed. We make a point of writing that on our care plans so every in home care provider who enters the home is aware of it.
If you have any questions, you can reach At Home Nursing Care, a licensed and ACHC accredited provider of non-medical in home care, RN Case Management and skilled nursing care, at 760-634-8000 or visit us online, www.athomenursingcare.com. You can download a brochure for San Diego here. Download an LA Brochure by clicking here.