Posts Tagged ‘Department of Labor’

Judge Places Temporary Restraining Order on New Companionship/Overtime Rule, Delaying Implementatio

December 31, 2014


Please note the really good news below. Help pass this on to other homecare providers who are members and most importantly pass it on to those providers who are not members of HCAF. This in an excellent example of what Trade Associations (National and State) can accomplish when they work together and are supported by a connected, engaged industry. With your continuing support we will gain even more ground and additional wins in 2015! Thank you all and I hope each of you have a wonderful and safe New Year’s celebration.

December 31, 2014


U.S. District Court Issues Order Blocking a New Department of Labor (DOL) Rule Which Would Redefine Companionship Services

Andrea Devoti, Chairman of the National Association for Homecare and Hospice (NAHC) today hailed the decision of the U.S. District Court for the District of Columbia which issued a Temporary Restraining Order (TRO) blocking DOL from enforcing a proposed new definition of “Companionship Services.”

“This means that our most vulnerable citizens get at least a temporary reprieve from what would otherwise have become a significant cost barrier to their paying for help at home for their chronic diseases.  Without this relief many seniors would be pushed into institutional care,” said Ms. Devoti.

This decision follows on the heels of a December 22 ruling by this same Court which restored the rights of home care consumers to benefit from the “companionship services” and “live-in” exemptions regardless of whether their caregivers were employed by persons receiving the care or by a home care company.

The lawsuit challenges a rule that would have significantly changed a longstanding 40 year old Federal overtime rule known as the ‘companionship exemption’ under the Fair Labor Standards Act.  The new rule would have defined ‘companionship services’ to be primarily “fellowship” and “protection”.  Under the new DOL rule, the exemption would not have applied if home care workers serving patients gave more than incidental personal care services. The proposed rule would have required all current caregivers to be paid overtime compensation in almost all cases.  This change would have led to higher costs which would have to be borne by infirm individuals or by the states and federal government through financially strapped programs such as Medicaid.

Following the court’s ruling on December 22, NAHC asked the court to stay the effective date of a new narrow definition of “companionship services”, which seemed to have the intent to eliminate two exemptions to overtime rules which benefit patients and home care employers.

In its motion for a temporary stay, NAHC argued that home care recipients, companies, employees, and payers of services would face a risk of irreparable harm if the DOL rule went into effect. NAHC also explained that it would be likely that its claims would succeed on the merits and that the public interest would be best served by maintaining the status quo on overtime exemptions while the lawsuit proceeds.

The effort for temporary relief was supported with detailed affidavits of likely harm submitted by two disability rights advocacy groups, The Centers for Independent Living and ADAPT along with the Kansas state Department on Aging which is concerned about the financial stability of its home care programs if overtime compensation is required.

The next phase of the case will occur quickly, as the court has scheduled a briefing and a hearing on whether a Preliminary Injunction should be issued. A TRO can be in force for no more than 14 days while a Preliminary Injunction can be in effect until a final ruling on the case.

The hearing is set for January 9. The judge indicated that he may rule on the preliminary injunction at the hearing, but he would rule no later than January 13.

During the time in which the TRO is in effect, home care companies can continue to pay home care aides and personal care attendants without added overtime compensation (as per usual in Florida). Home care companies are advised to consult competent counsel to determine if they qualify to use the exemption. If the requested injunction is granted on January 9, the exemption from overtime will continue until the court’s final ruling or the Court of Appeals reverses the injunction. The Department of Labor has previously indicated that it would appeal any adverse ruling of the court.

“Obviously some well intentioned people in the DOL put forth a rule which they said would be good for patients, helpful to homecare employees, and the companies that hire them, and equally good for State/Federal programs such as Medicaid. The fact is that the proposed regulation would have had exactly the opposite effect on every category.   For this reason NAHC applauds the US District Court for its rulings  and will continue to lead the effort  in support of the companionship rules as they have been in effect for more than 40 years,  and which have been sustained by a unanimous vote in the U.S. Supreme Court,”  said Chairman Devoti.

U.S. Department of Labor to End Companionship Exemption – Extend Minimum Wage and Overtime Pay Mandate to Direct Care Workers

September 17, 2013

The home care industry took yet another hit today. The United States Department of Labor has just announced that effective January 1st, 2015, agencies and other employers of direct care workers who provide home care services (such as certified nursing assistants, home health aides, personal care aides, caregivers, and companions) will will no longer be able to claim the Companion Exemption for live-in domestic service workers. Agencies and third-party employers will be required to pay these staff members the federal minimum wage and overtime pay.

This means live-in workers must be paid no less than the state or federal minimum wage (whichever is higher) and be paid an overtime rate not less than 1.5 times their regular rate of pay for hours worked past 40 hours in one workweek.

The Department of Labor will be holding a free webinar on what to expect with these changes. The webinar will take place Tuesday, October 15th, 2013 from 10:00-11:00AM EST. Registration has not yet opened for the webinar.

HCAF regrets this decision and continues to argue that this ill-guided policy hurts everyone involved; the provider, the direct care worker, and the patient. We are here to answer any questions you may have about this change and how it will affect agencies and employees in the future.

For more information, please see the Department of Labor’s website detailing the changes for home care.

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Home Care Workers Still Waiting For Labor Protections After Promise From Obama

June 26, 2013

By Dave Jamieson, The Huffington Post

WASHINGTON – In December of 2011, President Barack Obama stood at the White House alongside a group of home care workers and announced that his administration would extend minimum wage and overtime protections to them after decades of exclusion. The White House still has a video on its YouTube channel explaining the significance of the regulatory change, entitled “A Promise Kept.”

But in reality, the president hasn’t yet delivered on that promise. A year and a half after the fanfare, home care workers who tend to the elderly and disabled in their homes are still not covered under the Fair Labor Standards Act, the Depression-era statute that serves as a bedrock of U.S. labor law. The president’s proposal remains under review at the White House, where industry players have lobbied to have it softened, if not scrapped. (more…)

Home Care Workers Demand Minimum Wage, Overtime Protections

June 12, 2013

By Elise Viebeck, The Hill

Home care workers are demanding final rules from the Obama administration that would give them federal minimum wage and overtime protections.

The Paraprofessional Healthcare Institute (PHI), which represents home health aides, certified nurse aides and personal care attendants, called on President Obama to extend the protections of the Fair Labor Standards Act to its members.

The group pointed to Obama’s promise in December 2011 to ensure home health jobs offer the same wage-and-hour standards as other healthcare posts. (more…)

Money Magazine: Help Your Parents Get Home Care

May 14, 2013

By Beth Braverman, Money Magazine

The vast majority of Americans want to live at home for as long as possible: Nearly 90% of people over the age of 65 said so in a 2010 AARP survey.

And with assisted living costing more than $40,000 a year on average, staying put can also save money. But the physical and medical problems that go hand in hand with aging can make home life difficult.

That’s why seniors – and their adult children – are increasingly hiring help to extend their time at home. Demand for these services is so strong that the Labor Department expects the number of aides to rise by 70% through 2020, making it the fastest-growing job in America. (more…)

Obama Administration Mulls Rule To Give Home Health Aides Better Wages

April 29, 2013

By Alvin Tran, Kaiser Health News

As a home health aide, Nicole Fletcher, 40, provides personal assistance to the elderly, disabled and those living with chronic conditions in their own homes. She assists them with activities of daily living – including bathing, dressing and eating – and, on occasion, she often stays to help them overnight.

“Sometimes there will be 24-hour cases because the client needs care and cannot be left alone depending on their condition,” she said.

Working for a District of Columbia-based company, she earns more than the minimum wage and is paid time-and-a-half for every hour she works beyond her usual 40 per week. But unlike Fletcher, close to 2 million in-home care workers and personal care aides in the United States don’t always get paid for overtime work or receive minimum wage, according to the U.S. Department of Labor. They are explicitly excluded from a key federal wage law that carved out exceptions for causal babysitters and companions for people who are sick or disabled. (more…)

Home Care Workers Decry Lack of Wage Protection

April 18, 2013

It’s been a few months since President Barack Obama pledged to extend federal minimum wage and overtime protections to the nation’s 2.5 million home care workers – but the regs are still bottled up. A group of stakeholders and advocates are tired of waiting – they’re releasing a report and holding a conference call Thursday to push for action. (more…)

CNN: Why Grandma’s Aide Earns So Little

March 15, 2013

Act Now - Red ButtonBy Annalyn Kurtz, CNN

NEW YORK (CNNMoney) – Home health aides are the fastest growing job in America, yet many are not protected by federal minimum wage and overtime laws.

That’s right, people can get away with paying grandma’s aide less than $7.25 an hour.

Why? Congress decided in 1974 to lump home health aides in with casual babysitters under labor laws.

President Obama has been trying to change this recently, but the industry is fighting back. The debate all comes down to the meaning of “companionship.” (more…)

NAHC Meets with the Office of Management and Budget on Companionship Services Rule

February 15, 2013

The Office of Management and Budget (OMB) is in the process of reviewing the final rule drafted by the US Department of Labor (DoL) that would change the standards for applying the “companionship services” exemption under the Fair Labor Standards Act (FLSA). On January 15, 2013, the White House cleared the rule and forwarded it to OMB for its required review. (more…)

Labor Department Sends Home Health Companionship Final Rule to OMB

February 12, 2013

Late last month, the U.S. Department of Labor (DOL) sent a memo to members of Congress stating that the rule that would extend federal minimum wage and overtime protections to in-home health care workers, is pending in the Office of Management and Budget (OMB).

DOL has finished reviewing the 9,000 public comments on the proposed rule, which was issued on December 27, 2011 and has prepared a draft final rule that has been accepted by OMB, normally the final step before a rule is published. OMB now has 90 days to issue the final rule. (more…)