Congress tries to stop caregivers from receiving overtime pay

(CREDIT: Kourtney Liepelt as writer from Home Health Care News for this story)

Legislation aimed at restoring overtime exemptions for home care workers has been introduced in both the U.S. Senate and the U.S. House of Representatives, just days before the Department of Labor is slated to actively enforce a rule extending federal minimum wage and overtime protections to such employees.

Given the bill’s chances of survival, though, one trade organization has now vowed to take its previously filed lawsuit against the rules to the Supreme Court.

The measure, dubbed the “Ensuring Access to Affordable and Quality Home Care for Seniors and People with Disabilities Act,” seeks to amend the Fair Labor Standards Act to return home care workers to a category that exempts them from receiving overtime. It is sponsored by Sen. Pat Roberts, a Kansas Republican, and Rep. Tim Walberg, a Republican from Michigan.

Earlier this year, a federal court ruled that nearly 2 million home care workers are in fact eligible for minimum wage and overtime after the DOL in 2013 stated home care agencies could no longer claim that the workers were excluded from FLSA provisions instated in the 1970s. The DOL’s move was originally challenged by a handful of trade organizations, including the National Association for Home Care & Hospice (NAHC), arguing that access to care could be compromised if costs go up.

Now, NAHC was quick to express support for the new legislation, which was introduced Nov. 7.

 

“While home care workers deserve fair and reasonable wages for their crucial services in keeping seniors and persons with disabilities safely at home with high quality care, the regulatory changes do not further that goal appropriately,” NAHC President Val Halamandaris wrote in a letter to lawmakers. “[The] bill would provide the opportunity for all those involved in home care to design and implement effective changes that protect workers and our most vulnerable citizens at the same time.”

Provisions officially took effect Oct. 13, but the DOL indicated it wouldn’t start enforcing them for 30 days, or Nov. 12. Still, the effective date prompted mixed reactions, as some providers voiced concerns about their business models while others maintained a more positive outlook, claiming that higher home care rates are indeed sustainable.

States have made moves to adhere to the federal rules. Kansas, in particular, recently submitted a request for $6.5 million in funding to cover associated costs after previously claiming its Medicaid budget doesn’t account for the $12 million needed to increase home care workers’ wages, meaning a potential reduction in services offered — both plights topping NAHC’s list of concerns.

“The recent regulatory changes in the definition and application of these longstanding FLSA exemptions have only served to erect needless barriers to home care and to increase costs to financially strapped state Medicaid programs,” Halamandaris wrote. “At the same time, the dedicated and invaluable workers who provide this care have not seen any improvement in their overall wages as the funds necessary to cover overtime costs are simply not available from consumers and government health programs such as Medicaid.”

While NAHC indicated it views supporting the legislation as “another avenue for addressing the impact of the DOL rules in home care,” according to a news release, the organization plans to move forward with alternate efforts.

“The legislation has a limited chance of success in the immediate future…Similar measures to defund the implementations of the rules are likely to face similar results,” the release states. “As a result, NAHC has vowed to take its lawsuit to the Supreme Court by appealing the decision of the appellate court.”

 

(Compiled by Jerry Wolffe, writer-in-residence, advocate-at-large at the Macomb-Oakland Regional Center. He can be reached at (586) 263-8950.)