Private Care Association Discusses How Proposed FLSA Regulations Will Affect Home Care and Relationships
Industry Feels Changes to Companionship Exemption Act Will Affect Quality of In-Home Care
FEBRUARY 17, 2012 – On December 27, 2011 the Department of Labor (DOL) published a Notice of Proposed Rulemaking to revise the companionship and live-in worker regulations under the Fair Labor Standards Act. If approved, the rule would significantly narrow a 1974 exemption for companions for the elderly and / or ill from the Fair Labor Standards Act, which would require that they be paid overtime. The private home-care industry fears that this will make in-home healthcare more expensive and less individualized.
The fear is that this rule, which was meant to improve the level of care provided in the home healthcare industry, will instead lead to caregivers not receiving the work hours they want and consumers having to choose between paying more for the consistent care they are used to or accepting the alternative of having multiple caregivers per week.
On behalf of consumers, Marie W., whose parents both received 24-hour per day care from aides during the last few years of their lives, shared her story at a roundtable discussion hosted by the Small Business Administration Office of Advocacy and attended by the DOL in Washington, D.C. on February 1. Registry and home care owners, legal representatives for affected businesses, trade associations and members of the DOL participated in the discussion, which primarily focused on the economic impact of the rule on small business and considerations for possible regulatory solutions.
“I would pay anything to have another year with them,” said Marie. “It’s not all about money.”
But as Marie recalls, it was not just the quantity of care her parents received, but the quality and consistency of care that allowed them to live longer despite Parkinson’s disease, Alzheimer’s and severe heart failure.
“But if you don’t have the quality and continuity of care, in my parents’ case, they would not have lived as long as they lived.”
Such essential quality of care is what Marie, and thousands of others, feel will be threatened if the proposed rule passes. The near unanimous opinion of those who attended the D.C. – based meeting was that, while the proposed rule change is intended to result in higher earnings for these in-home caregivers, it will come at a great cost to ill and aging consumers, many of whom are on fixed incomes.
The home care industry and those opposed to the change feel that, not only will this change impact peoples’ wallets, but also the relationships formed between the caregivers and their patients are ultimately going to suffer if this proposal is implemented. Currently, comments to the Department of Labor must be received by Monday, February 27, 2012. However, the private caregiver industry, backed by Senator Mike Johanns (R-Ne), is asking for an extension, urging the DOL to extend the allotted time for comment by 60 days and allow the industry to more adequately examine the impact this would have and to submit their comments.
The cost differences between in-home care under the current legislation and what it would become if the rule passes are real. Over the course of more than six years, Marie’s parents had consistent aides who worked 12 hours per day for anywhere from five to seven days a week. There was a nighttime aide and a daytime aide, and they changed shifts at 8am and 8pm. Each of Marie’s aides worked 72 hours per week for $21 per hour. Together, Marie paid them a total of $3,444.00 per week, or $179,088.00 per year for 6 ¼ years, which is a total of $1,119,300.00 for this level of private care.
Under this legislation, if she were forced to pay overtime for hours worked over 40, her annual costs would have been $211,848 per year for a total of $1,324,050.00 for 6 ¼ years. This reflects more than a $200,000 difference, an amount that is not easily payable for most of today’s seniors or disabled population.
“I guess we would have paid it if we had to,” explains Marie, “but we would not have gotten the quality of care. My parents would not have been with us without that consistency. Their time would have been greatly diminished.”
As she explains, this consistency of aides was “so important for the quality of care provided to my parents. The aides’ constant supervision prevented many hospitalizations and acute emergencies that would have resulted in their death. An aide who wasn’t there all the time would not have that dedication and that comfort level if they’re only coming in once a week. They lack that attention to detail.”
Marie feels that her aging and ill parents would not have gotten the same quality of care and that their time would have been greatly diminished if they were being cared for by aides who only saw them one or two times each week. Turnover would also result in an uncomfortable adjustment period for her parents, who were fighting dementia and would become confused and often stay in bed rather than interact with someone new.
“The realization that the 24-hour care was permanent was devastating to them both,” Marie recalls. “As they got to know the aides they relaxed a little, but at each shift change my mother became anxious asking who was coming and begging the current aide on duty to stay and not leave. This anxiety was heightened greatly when an aide was coming that she did not know. If a new aide was assigned, I called to discuss the care plan with them as well as went over to be with my parents, as much to ease my mother’s anxiety and my own anxiety having an unknown aide.”
Joseph Bensmihen, National president of the Private Care Association (PCA) and chief executive officer of Boca Home Care Services, has heard stories like Marie’s many times in his profession and foresees the negative impact this rule will have on the individual consumer and the individual caregiver. He warns that the growing population of seniors, as well as the disabled, will face greater costs during an already weak economy; in-home caregivers will likely be forced to take on more clients for fewer hours, negatively impacting their incomes.
“To get around overtime, individuals or their children or grandchildren may choose to create a revolving door of caregivers, which will interrupt the quality and consistency of care they're used to,” explains Bensmihen. “Caregivers could be forced to move multiple times weekly to accommodate families unwilling or unable to pay overtime. The difficulty of synchronizing multiple client schedules could actually reduce caregiver work hours, and this may ultimately be detrimental to the relationships they have with their regular clients."
Though the goal of the rule is to pay these much-needed caregivers more for their efforts, many caregivers are wary of the effects this will have on their clients’ ability to pay. While her client would be willing to pay for overtime, Barbara*, a Florida-based caregiver, says they would not be able to afford it, which would mean she would have to seek multiple clients in order to continue paying her bills.
“I’m the breadwinner in my household,” says Barbara, “I’m a single parent, and if I would be cut down to 40 hours per week, that would make me have to go get a second or maybe even a third job.”
Barbara has been working with the same client for several years; her client specifically requested that she stay on and work with her exclusively because of the close relationship they have formed. Barbara believes that, if she has to reduce her time with this one client to only 40 hours each week, not only will her paycheck suffer, but her relationship with her client would suffer, too.
“If you have to bring a lot of different caregivers in, then that’s not good for (the client’s) quality of life,” she explains, “especially if they have dementia, because they’ve gotten used to one person.”
In December, following the Department of Labor's announcement, the PCA conducted a survey of three different audiences - caregiver registries, consumers and caregivers. Overwhelmingly, the caregivers interviewed all said their homecare work experience would worsen if the law changed, saying they would have to work with multiple clients each week, they would struggle financially and there would be an overall decrease in the quality of care for their clients. The consumers’ response was similarly negative, with many responding that they would not be able to afford to pay a caregiver more than 40 hours per week if they had to increase to time and half; their lives would become more stressful due to having multiple caregivers and the loss of continuity of care that would result.
According to the DOL’s Notice of Proposed Rulemaking, those interested may submit comments identified by RIN 1235-AA05 online through Federal eRulemaking Portal: http://www.regulations.gov. Written submissions must be addressed to Mary Ziegler, Director, Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW., Washington, DC 20210. All submissions must include the agency name and Regulatory Information Number (RIN) 1235-AA05.
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* Individual’s name has been changed.
Meri Monsour
On behalf of Private Care Association
(504) 484-3442
meri@hmadvertising.com
The Private Care Association (PCA) is a national organization of caregiver registries who support the consumer – directed model of care, which emphasizes the consumer’s choice and the rights of caregivers who serve those consumers. Visit privatecare.org for additional information.
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