January 14th is a special day for home care agencies that provide private duty home care and Medicaid Waiver home care services to patients. The decision was handed down in favor of NAHC, the Home Care Association of America and another trade related group.
The ruling is in favor of home care agencies and states that companionship services and live-in services are not subject to the 40 hour per week overtime rules or minimum wage. Therefore, agencies can continue to provide live-in staff and aides for patients that need services without fear of paying overtime.
This is a huge win for the industry and NAHC. At time of publication, there was no indication that the Department of Labor would appeal this decision. However, it should be noted that should an appeal go forward, NAHC has a history of winning, as it did in the past with a favorable 8-0 decision in NAHC’s favor. This decision is one of 3 in NAHC’s favor over the past month.
One thing that you need to be aware of is the definition of companionship services. The DOL’s new interpretation of the law was very specific and included home care staff that was not part of the law’s original intent. Therefore the ruling win for the law was not only positive, but it forces the DOL to return to the long standing, 40 year old definition of companionship services.
The existing and original DOL definition goes back to 1974 Fair Labor Standards Act Amendments and states:
“As used in section 13(a)(15) of the Act, the term “companionship services” shall mean those services which provide fellowship, care, and protection for a person who, because of advanced age or physical or mental infirmity, cannot care for his or her own needs. Such services may include household work related to the care of the aged or infirm person such as meal preparation, bed making, washing of clothes, or other similar services.”
The long standing definition clearly indicates that the intention of the law was to provide care necessary to ensure patient safety and health. As this is an overall win for the industry, agencies should be happy to know that they can continue to operate and provide quality care.
Not only do patients and patient’s families rely on the long standing definition, the affordability of such care is dependent on this definition. The paraprofessional caregiver is also dependent upon these rules and is in favor of them.
The changes that were scheduled to go into effect on January 1, 2015 not only hurt families but also caregivers. If the new rule and definition was to go into effect, many caregivers who rely on those extra hours above 40 would have been hurt. Agencies would have also suffered as they scrambled to modify scheduling and increase staff to fill the void. The compliance and payroll situation would have been a nightmare.
Congratulations to NAHC and the industry as a whole for a job well done! This type of legislative action is what NAHC needs to focus on to improve the industry, not harm it with legislation that goes directly against home health and home care. – HHT