Crain’s New York: State issues emergency regs on how it pays home care workers for 24-hour shifts

By Caroline Lewis, October 13

The state Department of Labor has issued an emergency update to its minimum-wage regulations that reinforces its longstanding guidance to home health care employers to pay workers for just 13 hours of a 24-hour shift.

The policy, known as the ’13-hour rule,’ helps control state spending on home care, which accounts for about 11% of the Medicaid budget. But it conflicts with three New York appellate court decisions issued in April and September that threw the home care industry into a panic.

The rulings said home health aides who don’t live full time with their elderly or disabled clients should be paid for every hour of a 24-hour shift. Although the Labor Department says workers don’t need to be paid for time spent sleeping and eating, the courts ruled they should be paid as long as they’re required to be at work.

Home care employers have been anxiously awaiting guidance from the state on whether to change their pay policies following the rulings. Anecdotally, some have stopped accepting new patients requiring 24-hour care until the matter is resolved.

“We’re happy the state clarified its guidelines,” said Claudia Hammar, president of the state Association of Health Care Providers, which represents home care agencies. “But there’s still this big issue of retroactive payments that providers may be liable for if they’re involved in a lawsuit.”

Employers involved in class-action lawsuits challenging the 13-hour rule could be forced to pay back wages to any employee who has worked a 24-hour shift in the past six years, according to the state’s statute of limitations.

“It’s in the state’s best interest to try to figure out a way to address this situation,” Hammar said, noting that some home-care agencies could go bankrupt if they have to pay. So far, more than a dozen class-action lawsuits challenging the 13-hour rule have been filed in New York.

Carmela Huang, a lawyer with the Urban Justice Center who represents home health aides, said she worries the new language the Labor Department added to its minimum-wage order for “miscellaneous” occupations could make it more difficult to bring class-action suits challenging the rule in the future. The order now invokes federal law allowing a home health aide working 24-hour shifts to enter into an “expressed or implied” agreement to not be paid for time spent sleeping or eating.

“As it applies to our clients, if they’ve never gotten paid [for sleep and meal time], an employer can say that’s implied consent,” Huang said.

If that’s the case, workers could still argue they didn’t get the requisite sleep and meal time, but that’s harder to prove on a class basis, Huang said. She added that she intends to challenge the department’s decision to adopt the new regulations without opening them up to public comment.

The Labor Department said the update simply “codifies the department’s longstanding interpretations of the statutory requirement to pay for ‘each hour worked.'”

Democratic Assemblyman Richard Gottfried, who chairs the health committee, called on the state last week to include sufficient funding in the upcoming Medicaid budget to pay home care employees for every hour worked.

Gottfried said the practice of paying aides for 13 hours of a 24-hour shift is “outrageous.” He acknowledged, however, that it “will take a significant chunk of money” to remedy the situation. As it is, home care cost the state Medicaid program $7.2 billion in fiscal 2017.

Increasing the budget for home care won’t be sufficient to solve the problem, Gottfried said.

“In addition, we need safeguards to make sure that managed long-term care plans [that pay for home care] and home care agencies don’t use gimmicks to avoid enrolling high-need patients or refusing to approve adequate coverage where needed,” he said. “That has been a problem for some time now.”

Gov. Andrew Cuomo’s office did not respond to multiple requests for comment.