Direct-care workers apply pressure

Supporters of a proposed rule to change the companion exemption in the Fair Labor Standards Act pressured the Obama administration last week to make a final ruling.

“We’re calling on the Obama administration to move quickly to finalize as published this rule,” said Carol Regan, director of governmental affairs at the Paraprofessional Healthcare Institute (PHI), in her opening remarks during a telebriefing.

President Barack Obama announced in December 2011 a proposed rule change that would expand minimum wage and overtime protections to cover in-home care workers who currently fall under the companion exemption in the Fair Labor Standards Act.

The U.S. Department of Labor, in putting forth the proposed rule change, argued that the companionship exemption was originally meant to apply to babysitters and those family and friends who care for the elderly. The proposed rule would amend the companionship exemption so that it would not be applied to home care workers employed by third parties and those home care professionals employed directly by families.

The original comment period was scheduled to end on Feb. 27, 2012 but was extended by the DoL until March 12, 2013. According to Regan, during the public comment period, more than 25,000 comments were received – 75 percent in support of changing the exemption. The proposed rule was then submitted to the Office of Management and Budget (OMB) for final review. That 90-day review period ended last week.

[See also: DoL extends comment period on home care worker wage protection .]

Bruce Vladeck, PhD, the former director of Medicare and Medicaid programs in the Health Care Financing Administration of the U.S. Department of Health and Human Services, said the continued wait is due to the aggressive lobbying of the OMB by the home care industry.

“I’ve been working on these issues for many years and I’ve never seen such a clear instance in which we have accepted and condoned the exploitation of literally millions of people whose services are vital to our communities, to our families, … certainly to our public programs,” he said.

“To me, it’s just such a straightforward question of simple justice that it’s astonishing to me that (16) months into this process people are taking seriously a debate about it,” he added.

Opponents to the rule change argue that a requirement to pay overtime will mean that the costs to cover that overtime will be passed on to families who will not be able to afford the additional care costs. There is also concern among state Medicaid directors that they will have to bear cost increases passed on by the home care companies.

Home care employers present at the telebriefing who support the companion exemption change said that the concerns about the extra costs are overblown and that it is vital the change happens because the worker shortage will have more impact on their ability to serve the community and maintain a profitable business than then any extra costs due to overtime pay.

“We do everything we can to not pay overtime, but if we have to pay overtime we do,” said Tracy Dudzinski, CNA, board president of Wisconsin-based home care agency, Cooperative Care and board chair of the Direct Care Alliance. “Right now I can tell you we have more hours to work than we have workers to fill.”

A spokesperson for the OMB said that the office’s policy is not to comment on rules under review and that the office has by law the right to extend the 90-day review period.