HOME CARE AS­SO­CI­A­TION OF AMER­ICA V. DAVID WEIL

Modern Healthcare - - LEGAL -

This case has im­pli­ca­tions for home healthcare work­ers and the in­dus­try, though it’s not yet clear whether the Supreme Court will agree to hear it.

Home healthcare in­dus­try groups are chal­leng­ing a new fed­eral La­bor Depart­ment rule that would mean higher wages for many home healthcare work­ers. For decades, home healthcare agen­cies haven’t had to pay min­i­mum wage or overtime to com­pan­ion­ship work­ers who pro­vide “fel­low­ship, care and pro­tec­tion.”

The rule, how­ever, would sig­nif­i­cantly nar­row the def­i­ni­tion of com­pan­ion­ship work­ers to those who spend no more than 20% of their time pro­vid­ing ac­tual care, such as feed­ing and bathing. It would also no longer ex­empt com­pan­ion­ship work­ers em­ployed by third par­ties, such as home healthcare providers, from wage pro­tec­tions.

The La­bor Depart­ment says the new rule is needed to en­sure fair wages. In­dus­try groups, how­ever, say the rule could make home care un­af­ford­able for many and desta­bi­lize the in­dus­try.

A fed­eral ap­peals court re­cently up­held the rule. In­dus­try groups re­sponded by say­ing they will likely take the mat­ter to the Supreme Court.

“This af­fects mil­lions of peo­ple who re­ceive the care. It af­fects state Med­i­caid pro­grams that fi­nance the care. It af­fects thou­sands of com­pa­nies that pro­vide the care, and it af­fects 1 to 2 mil­lion work­ers,” said Wil­liam Dombi, co-coun­sel for the in­dus­try in the case and a vice pres­i­dent at the Na­tional As­so­ci­a­tion for Home Care and Hos­pice. “We have a sig­nif­i­cant public pol­icy is­sue here.”

Those on the other side of the case, how­ever, be­lieve its chances of reach­ing the high court are slim.

“We do not ex­pect the Supreme Court to take up this case,” said Robert Espinoza, vice pres­i­dent of pol­icy at the Para­pro­fes­sional Healthcare In­sti­tute, which rep­re­sents home health aides and other healthcare work­ers.

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