Federal Judge Strikes Down Portion of DOL Companionship Rule

A federal court ruled yesterday that the U.S. Department of Labor (DOL) violated the Fair Labor Standards Act (FLSA) with its regulation that excluded third-party employers from the application of the “companionship services” and “live-in domestic services” overtime exemptions.

The lawsuit challenging DOL’s new narrowed interpretation of the companionship exemption was filed by the Home Care Association of America, the National Association for Home Care and Hospice (NAHC), and the International Franchise Association.  It was filed in US District Court for the District of Columbia.  The opinion was written by judge Richard J. Leon.  The full text of Judge Leon’s decision is available here.

Yesterday, NAHC’s Vice President for Law Bill Dombi drafted the following questions and answers, which provide further background on the implications of this ruling:

The Overtime Lawsuit: What Does the Court Ruling Mean?
(Source: NAHC)
The decision issued by the federal court on December 22, 2014 is a big win for home care, but much remains to be done to fully preserve the overtime exemptions for companionship services and live-in domestic services. Here are some of the most important things to know to understand the impact of the decision and what it means to home care.
Q.     What did the court rule?
A.     The court ruled that the US Department of Labor violated the plain language of the Fair Labor Standards Act (FLSA) with its regulation that excluded third-party employers from the application of the “companionship services” and “live-in domestic services” overtime exemptions. Home care companies are considered third-party employers. Home care workers employed by the direct consumer of the care or their family members acting as the employer are the only parties that could have used the exemptions under the rule that was invalidated by the court. This does not change any state laws that already limit the exemptions or their application.
Q. Does this mean that home care companies do not have to pay hourly home care aides overtime?
A. No. The regulation also redefined companionship services, limiting that definition to fellowship services and no more than 20% of time on personal care or housekeeping tasks. The lawsuit also challenges that part of the new regulation as well. However, that part of the case has not yet been presented to the court. We are now preparing to do so.
Q. Why wasn’t the definition of “companionship services” presented to the court earlier?
A. A tactical decision was made on how the case would be litigated. If the definitional issue was presented before or concurrent with the third-party employer issue there was a serious risk that the lawsuit could make matters worse for home care companies. If the court invalidated the definition of “companionship services,” but upheld the exclusion of third-party employers from the application of the exemption, home care companies would be outside an expanded exemption. Workers directly employed by the consumer would have qualified for the exemption. That would put home care companies at a cost disadvantage to consumer/employer care. Consumers (and state Medicaid programs) would have bypassed the agency model of care in favor of direct employment to save money.
Q. When will there be a court ruling on the definition of “companionship services?
A. A discussion of that will occur between legal counsel from both sides on December 23. It is hoped that the Department of Labor will agree to a temporary hold on the new rule consistent with its “policy action” under which the government will not enforce the rule for at least six months. To do so, the government only needs to agree that private enforcement will be put on hold as well.
Q. If the government does not agree to hold off on the rule, what happens next?
A. We will then need to go back into court to get a temporary injunction before January 1. That will require that we show that we are likely to succeed on the merits when the court fully hears the case and that home care companies will suffer irreparable harm if the court does not maintain the status quo with the current rule.
Q. What about live-in services?
A. The only substantive change that the new rule made to live-in services is the exclusion of workers employed by third-party employers from the exemption. “Live-in domestic services” is a much broader class of employees that would include personal care and housekeeping workers. As such, the court ruling effectively returns that exemption to it current state. Home care companies would not be required to pay live-in workers overtime unless state law requires such.
Q.     What should we do now in our company?
A.      The best advice we can offer is to “stay tuned” over the next week as much can and will happen to clarify things.  However, it would be prudent to continue to expect to trigger whatever action you planned to take on January 1 in the absence of the court’s decision. Things can change that dramatically, that quickly.
Q.     Will the government appeal?
A.      That is one option open to the Department of Labor. However, they would need to get the federal judge to stay his ruling pending any appeal. If the judge refuses to do so, the government would need to get the Court of Appeals to issue a stay.

While this ruling has no impact on Massachusetts law, we will inform members as additional developments occur in this court case.

Return to www.thinkhomecare.org.

 

Home Care Impacted by Governor’s Budget Cuts

With a new Governor coming into office in January and a $329 million budget shortfall, the Patrick Administration was forced to make reductions to close the deficit.

A large chunk of those cuts came at the expense of MassHealth, which makes up slightly more than half of the state’s $36.5 billion fiscal year 2015 budget. MassHealth officials contacted the Home Care Alliance to report that $68.5 million in reductions had to come from MassHealth alone and that a rate increase for home health agencies is no longer on the table for FY15.

The Home Care Alliance had seen hints that there finally would be a review of MassHealth home health care rates after years of being passed over. Rates were frozen in 2007 and one of the Patrick Administration’s first cuts were from home health services past 60 calendar days of care. The rate inexplicably dropped by 20 percent for patients who require longer-term home health care and that cut has not been revisited.

Also cut was $1.52 million from the Elder Affairs’ “Home Care Purchased Services” line item that will go into effect on December 1st at which time the waiting list for Aging Service Access Point (ASAP) services could go back into effect. Officials from Elder Affairs indicated the lowest priority level would be the only one impacted, which preserves those in the greatest need for care.

The bright spot is that the Home Care Alliance’s efforts to gain MassHealth reimbursement for telehealth provided by home health agencies is not impacted and plans to implement rates and guidelines is going on as planned. Moreover, home health rates are, more or less, remaining status quo and are not being reduced further. Nursing Home Supplemental Rates, for example, were slashed by $9.1 million.

A rate review for home health services remains a top priority and the HCA will continue to work with the legislature and MassHealth on improving payment.

Return to www.thinkhomecare.org.

Seventy Agencies Accredited!

accreditation-logo-no-year

The Alliance hit a milestone this week, with a new total of 70 agencies currently Accredited!  To earn accreditation from the Alliance, each of those agencies submitted documentation demonstrating their compliance with fifteen separate measures covering client rights and protections, caregiver qualifications and skills, insurance coverage, and employment practices.  Details about the Accreditation standards are available on the Accreditation Page of the Alliance’s website.

The Alliance developed the Accreditation program because Massachusetts does not have a licensing program specific to home care agencies.  By their adherence to the fifteen Accreditation standards, private care home care agencies demonstrate their commitment to quality.

A complete list of Accredited agencies is available here.

Return to www.thinkhomecare.org.

NHIC- Ask the Contractor- August 15th

The Medicare Administrative Contractor, NHIC. Corp., will hold the Hospice & Home Health Ask the Contractor Teleconference (ACT) on August 15th at 10:00 a.m

Ask-the-Contractor Teleconference is an opportunity to speak directly with the contractor. NHIC staff representing a variety of functions will be available to answer questions. NHIC usually will provide some updates to the home health and hospice community but the majority of this call is dedicated to providers as a question and answer open forum.

Registration is required on NHIC’s website- Education Programs.

Return to www.thinkhomecare.org.

Nominate Your Best Nurses for Boston Globe Honors and Annual HCA Event

The Boston Globe will be running a special section called the “Salute to Nurses,” which will be a standalone broadsheet section appearing in The Boston Sunday Globe on May 5, 2013. This section will focus on the stories that readers submit, recognizing the impact nurses have on patients’ lives.

Over the past 11 years, thousands of people have found “Salute to Nurses” to be a meaningful and public place to give thanks to the nurses who have helped them or loved ones through difficult times.

Visit the Boston Globe’s online form and submit your best nurse stories and, for agencies, encourage your patients to do the same if they have had a exceptional experience. This is an excellent opportunity to shine a light on the work of home health nurses.

Another opportunity to spotlight the great work from nurses, aides, and other staff is to nominate them for a “Star Award,” which will be given out at HCA’s annual Innovations Showcase and Star Awards Ceremony on April 17th at the Revere Hotel in Boston.

See the posting on the Alliance’s Calendar of Events for more details.

Return to www.thinkhomecare.org.

Planned Revisions to Home Health Beneficiary Notice-Open for Public Comment

Presently home health agencies (HHAs) are required to use the Home Health Advance Beneficiary Notice (HHABN), CMS-R-296 to provide beneficiaries with change of care notification consistent with HHA Conditions of Participation (COPs) in addition to its liability notice function. Option Box 1 addresses liability, Option Box 2 addresses change of care for agency reasons, and Option Box 3 addresses change of care due to provider orders.

In CMS’ effort to “streamline, reduce, and simplify notices to Medicare beneficiaries,” HHABN Option Box 1, the liability notice portion, will be replaced by the existing Advanced Beneficiary Notice of Noncoverage (ABN) which is approved by Office of Management and Budget (OMB) for conveying information on beneficiary liability. CMS will introduce the “Home Health Change of Care Notice” (HHCCN) as a separate, distinct document to give change of care notice in compliance with HHA conditions of participation. The HHCCN will replace both Option Box 2 and Option Box 3 formats of the HHABN. The single page format of the HHCCN is designed to specify whether the change of care is due to agency reasons or provider orders. Form Number: CMS–10280 (OCN: 0938–New) To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, go to CMS’ Web Site address at http://www.cms.hhs.gov/, or Email your request, including your address, phone number, OMB number, and CMS document identifier, to Paperwork@cms.hhs.gov, or call the Reports Clearance Office on (410) 786-1326.

The full notice and details for submitting public comments on the proposed changes can be accessed in the Federal Register.  Comments are due by February 11, 2013

Return to www.thinkhomecare.org.

Four Reasons to Choose An Agency Over A Direct Hire

This month, the Alliance is mailing nearly 5,000 copies of its latest publication, 4 Reasons to Choose An Agency Over A Direct Hire to every Council on Aging (COA) and Aging Access Service Point (ASAP) in the state.  Additionally, packages of up to 50 copies of the brochure are available on the Alliance’s website at no charge.

This postcard-sized brochure is professionally printed on heavy card stock and is intended for families uncertain why they should choose an agency.  On the front, it describes four areas where home care agencies have a distinct advantage over direct hires; on the anterior, it provides a “Quality Home Care Checklist” to help visualize these benefits.

Front page Anterior side

The full text of the front page reads:

Why should your family work with a Home Care Alliance of Massachusetts member agency rather than hire an aide or nurse directly? Home care agencies provide significant benefits over direct hires in the areas that matter most to families:

    1. Employer Obligations: By hiring an aide or nurse directly, you take on the legal responsibilities of an employer, including paying payroll taxes, workers compensation, unemployment insurance, and liability. Working with a Home Care Agency alleviates you of these responsibilities.
    2. Peace of Mind: The only background checks that come with a direct hire are those you do yourself. Home Care Agencies, however, are required to conduct criminal background checks and have access to more comprehensive data than is available to the public.
    3. Security & Contingency: If your direct hire harms or steals from you, you’re on your own. In contrast, Home Care Agencies are required to carry various forms of insurance to protect you. Additionally, agencies can quickly provide a replacement if your aide or nurse is sick, injured, or changes jobs.
    4. Training & Supervision: You are responsible for training and supervising your direct hire. Home Care Agencies, however, have the experience, knowledge, and resources to ensure their workers are thoroughly trained in any services or tasks they perform, including safe infection control, falls prevention, emergency preparation, and personal care tasks.

How do you know an Agency is doing these things correctly? Don’t be afraid to ask them directly, or check to see if they’re a member of the Home Care Alliance of Massachusetts at http://www.thinkhomecare.org/agencies.

Return to www.thinkhomecare.org.

Enhanced Agency GoogleMap Now Available

With 200 member agencies across the state, there’s a Home Care Alliance member near just about everyone.

Now, the Alliance is pleased to announce an improved referral tool to show exactly how close on GoogleMaps:


By clicking on an icon, the map provides contact information about each member while letting you know whether it accepts Private Care, is Medicare Certified, and/or Accredited by the Home Care Alliance.

In it’s current form, the map shows the physical locations of our members.  To do a detailed search by Service Area — i.e., where agencies actually serve — and service type, you can still rely on our Find-An-Agency Search.

Return to www.thinkhomecare.org.

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