Companionship Services Exemption: A Deadline Missed

By Jane Gross, Special to The New York Times

Legions of home health aides continue to toil for less than minimum wage, the only American workers not covered by the Fair Labor Standards Act. More than a month has passed since May 14, when President Obama could have ended this exclusion and, with the stroke of a pen, forced a new regulation into effect. All legal deadlines and extensions in this sclerotic regulatory process have been exhausted.

Of course, this is not the only federal regulation in limbo. Executive inaction has left many significant rules, which the administration had called a priority, awaiting action long past legal deadlines. The number has risen sharply since 2011 because of a variety of factors, including high-level job vacancies and election-year politicking.

Federal records show that the Obama administration was on pace with previous administrations — already a very low bar — in its first three years. But in 2012, an election year with the economy the focus, the number of rules issued dropped to the lowest since the complex process was initiated in 1993.

Deane Beebe, media relations director for PHI, which advocates for the home care workers, confirmed in an interview that “the regulatory process is one with a timetable and deadlines’’ but “no teeth,’’ absent executive action. “Obama can indeed speed up this process to make issuing the final rule finally happen,’’ she added.

The president’s original choice to run the office reviewing proposed regulations, Cass Sunstein, resigned last August, succeeded by an interim director. The choice for permanent replacement, Howard A. Shelanski, now the top economist at the Federal Trade Commission, acknowledged at his confirmation hearings last week that the backlog was unacceptable, thwarting Mr. Obama’s policies and failing to meet the standards of a 1993 executive order by President Clinton meant to streamline the process.

A rule change would benefit more than three million aides and countless clients. As the population ages, the need for these workers is expected to grow to 1.6 million by 2020. At the moment, though, nearly half of these aides are so poorly paid they must rely on public benefits like food stamps.

Jane Gross is The New Old Age’s founding blogger and author of “A Bittersweet Season: Caring for Our Aging Parents — and Ourselves” (Alfred A. Knopf/Vintage).

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