Weekly column in the Washington Times Communities by Laurie Edwards-Tate
A disaster looms on the horizon for the home care industry, its workers, and for the seniors and disabled adults and their families who rely on affordable, quality home care to remain independent. This safety net is being threatened by a Labor Department proposal backed by President Barack Obama as a way to get around stalled jobs legislation in Congress.
As expected, Labor Department officials have officially recommended removing the “companionship exemption” from the Fair Labor Standards Act (FLSA). This change, while perhaps well-intentioned on the surface, threatens the quality of home care for many of America’s seniors and disabled adults and will put thousands of people employed in the home care industry out of work.
Currently the FSLA exempts most home care workers (also known as personal care assistants or companion care workers) who provide “companionship services for individuals who because of age or infirmity are unable to care for themselves” from minimum wage and overtime pay requirements. The U.S. Supreme Court recently affirmed this companionship exemption.
Speaking at a White House ceremony in December to announce this action, President Obama was surrounded by a dozen home health care workers. “They deserve to be treated fairly. They deserve to be paid fairly for a service that many older Americans couldn’t live without.”
Make no mistake. Many seniors and their families will be the ones to pay the price, going without home care services when they can no longer afford it as a direct result of this ill-considered proposal.
Live-in and sleep-over time is vitally important as a critical safety net. It often provides respite to family caregivers. But it is often no more than being available. Little or no work is being performed for many of the hours of these shifts. Overtime is difficult to justify under these circumstances. The cost of overtime especially will make in-home non-medical care unaffordable for many, if not most, of the seniors and persons with disability we serve.
Modifying the exemption will have unintended consequences. In 29 states, including California, an agency will employ a live-in caregiver for a 24-hour shift. If the overtime exemption is eliminated, the agency will staff this case with three workers in eight-hour shifts instead. The workers’ pay will drop and the client will lose continuity of care and the safety it provides with three workers rather than one.
Loss of an affordable in-home non-medical care option will force many seniors and people with disabilities into institutional care, which is often paid for through Medicare, Medicaid or another government program. This puts the burden on taxpayers. At a time where the nation is taking a hard look at cutbacks in these programs, this is a cost Americans can ill-afford.
People who need private duty services who can no longer afford the professional, caring services offered through private duty companies will simply employ people through the underground economy. They put themselves at risk for substandard care, even elder abuse. Governments will lose tax revenue, while the caregivers will lose important employee protections.
PHI, a national advocacy organization for home care workers, estimates that personal care aides are projected to be the fourth fastest-growing occupation in the U.S. between 2008 and 2018, increasing by 46 percent. This is no surprise, as we know the U.S. population over 65 is expected to double in the next 20 years.
No one opposes adequate and fair wages of those doing such admirable work. But this need must be carefully balanced with the unique needs of seniors and people with disabilities who need home care and keeping that type of care affordable.
For a patient with dementia who needs 24-hour care, for example, a family is currently allowed to pay home aides at a flat hourly rate. Lindsay points out that if overtime rules apply, the cost of care could triple. How many families could afford a service that triples in price overnight? How many seniors on fixed incomes could even begin to afford it? Many struggle just to pay for food, housing, and medications.
Most home care providers are small business with limited resources. Eliminating the companionship exemption would result in reduced availability of care to seniors and the disabled, and increase the costs of service delivery with no corresponding increase from third party payers, such as Medicaid. Federal and state programs are already in jeopardy, and in no position to increase their payment rates to meet the added costs of overtime compensation.
When the proposed regulations are formally published in the Federal Register, there will be a 60-day period to submit comments. According to health care law attorney Elizabeth E. Hogue of Burtonsville, Maryland, in the past input has been effective making an impact on proposed Labor Department regulations addressing such exemptions.
It is imperative for seniors, their families, agencies, and anyone else concerned about the impact of these burdensome and costly regulations to speak out and let the federal government know the damaging effect these changes will have on them.
To preserve your right to affordable, reliable home care services, it is critically important that you contact the Labor Department and tell officials you oppose this change.
To make an official comment, you can do so online through the Federal eRulemaking Portal. Comments must be received on or before February 27, 2012. In order to leave a comment, please click on this link. When you reach the page, click on the “Submit a Comment” button and enter your comment.
Please note that you will be required to give your contact information in order to comment and that it may be publicly posted.
You may also mail a letter to:Mary Ziegler Director, Division of Regulations, Legislation, and Interpretation Wage and Hour Division U.S. Department of Labor, Room S-3502 200 Constitution Avenue NW Washington, DC 20210
All submissions must include the agency name and Regulatory Information Number (RIN) 1235-AA05.
Take a few minutes and contact your representatives in Washington. Let them know how these changes will negatively impact your family and your community. It could make all the difference.
Until next time, enjoy the ride in good health!