Posted on Tuesday, April 18, 2017 2:45 PM
On April 11, a huge upset for home care providers took place with the potential for the New York State Supreme Court to allow caregivers to be paid for sleep and mealtimes in a 24-hour shift.
Prior to this ruling, caregivers in New York were entitled to 13 hours of pay for a 24-hour shift, only if the home health aide was allowed eight hours of sleep with at least five hours of no interruption.
This ruling goes against the long-standing practice of the New York State Department of Labor.
Additionally, the court ruled that home health aides that are employed by an agency are not categorized as “residential” employees under New York law, therefore they could be qualified for up to six years of backpay.
Tokhtaman v. HumanCare, LLC is a case that was developed due to a home care aide employed by HumanCare. She supposedly didn’t fall into the category of employees who are only paid for 13 hours of a 24-hour caregiving shift.
Additionally, HumanCare is a fully licensed home health care provider in New York.
“This case has potential far-reaching impacts on the costs of services,” Roger Noyes, director of communications at the Home Care Association of New York (HCA) told HHCN. “For those providers that do have a high concentration of 24-hour, live-in cases, the new costs would be enormous.”
According to Noyes, the data on the prevalence of 24-hour, live-in caregiving is not entirely conclusive across the industry.
In its ruling, the court decided on the following:
• Employees are to be paid minimum wage for every hour they’re required to be available for work at a designated place
• A “residential employee,” while on call, isn’t required to be paid during sleeping hours
Based on the opinion letter, HumanCare wasn’t able to defend that a live-in aide should only be paid for 13 hours of a 24-hours shift. The court states that the opinion wasn’t able to differentiate between residential and non-residential employees.
“Consequently, the court held that if the live-in aide can demonstrate that she was a nonresidential employee, she could recover unpaid wages for hours worked in excess of 13 hours a day,” HCA wrote in its newsletter to members.
Another case that is similar is currently on appeal, Adryeyeva v. New York Health Care, Inc. If this case is appealed, the New York Appeals Court will make to make the final decision on this one.
In order for this ruling to work, home care providers might have to limit their live-in services or not allow 24-hour shifts at all. In addition, the state will have to increase its Medicaid reimbursements for 24-hour shifts.
“If the Tokhtaman or other rulings hold, this will add significant new labor costs and regulatory distinctions that the state needs to sort out both in terms of its published requirements for providers and in its establishment of Medicaid rates to cover labor costs,” Noyes said. “Otherwise, providers are left in limbo as far as the requirements while subject to a hole in reimbursement for meeting the costs of compliance.”
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