Message Points: Comments on Department of Labor Scheduling Rule

HCA encourages members to use the message points below in your comments to the state Department of Labor (DOL) on its proposed rule that would change the regulations regarding “call-in” pay. Comments are due to DOL by Monday, January 8, 2018.

If you are submitting comments, please do so in letter form, presented on your organization’s official letterhead, which can be sent as a PDF attachment to the following e-mail address: regulations@labor.ny.gov. Further instructions are below.

STEP 1: Frame your Comments in the Form of an Official Letter on Your Organization’s Letterhead

We recommend that your letter begin by: addressing the DOL’s Deputy Counsel; identifying the rule in question; and providing background about yourself and your organizations, as follows:

Michael Paglialonga
Deputy Counsel
New York State Department of Labor
Harriman State Office Campus
Building 12, Room 509, Albany NY 12240

Re: Employee Scheduling (Call-In Pay) I.D. No. LAB-47-17-00011-P

Dear Mr. Paglialonga:

I am writing to you today on behalf of [insert your organization’s name] regarding a proposed state Department of Labor rule that adversely affects my organization and the efficient delivery of care to [insert number of patients] patients/clients that my organization serves in [insert region or counties served]. The rule, which would change the regulations regarding “call-in” pay, was published in the November 22 posting of the New York State Register. I strongly urge DOL’s rejection of the proposed rule or, in the least, DOL’s carve-out and exemption of home care and hospice services from the rule, as home care and hospice are uniquely impacted by the rule and could not operate, as expected and required, by the standards established in this proposal.

STEP 2: Present Your Arguments, Examples and Impacts

Please use the bullet points below to support your argument that DOL should reject this rule or carve-out home care and hospice as indicated in the introduction of your letter to DOL (as framed above). In doing so, be sure to provide case examples, data (where available), or cost impact projections (if you have them). Also, where possible, try to present these arguments in an order of your own priorities and in your own language.

  • Contrary to the state DOL’s claim that the rule does not impose any mandatory costs, the rule would impose enormous costs to home care and hospice agencies and managed care plans from the payment “penalties” that would be constantly and unfairly triggered, not from worker exploitation, but from the natural patterns that require home care and hospice to revolve around the patient and the patients variable and changing needs. Home care and hospice, even more than any other area of health care, does not (cannot) function on a rigid schedule, like in retail or food service, etc. Our scheduling and assignment of staff must match the dynamic needs and circumstances of the patient — for the quality, health and safety of the patient.
  • The impact on the managed care plans and agencies from this proposed mandate would further extend to the state Medicaid budget and fiscal plan, as the large costs triggered would have to be factored into managed care premiums and home care and hospice rates in order to fund the costs.
  • The rule’s “unscheduled shift” and “cancelled shift” provisions are incompatible with how care at home is delivered where hours are started, increased, decreased or eliminated due to reasons unique to home care and hospice and their patients, and beyond the control of the employer. This includes the following circumstances: a patient’s condition deteriorates or improves and the patient needs more or less services without an advance notice of 14 days; the patient becomes ill and is admitted to a hospital, nursing home, or the patient remains at home but does not want or need an aide visit; a patient or family cancels the aide visit with little advance notice; family members, who provide back-up care, have a sudden change in their own availability, altering the patient’s need for home care or hospice services; a patient or the doctor schedules a medical appointment without giving adequate advance notice to the home care/hospice agency; the unpredictable nature and without advance notice for when patients will be discharged from a hospital/nursing home and will need care at home; when aides have to take time off due to sickness, child and other responsibilities and replacement aides have to be scheduled less than 14 days in advance.
  • Many of the exceptions in DOL’s rule would not apply to home care and, therefore, do not provide the kind of relief otherwise extended to other employers. This includes the “unscheduled shift” exception in response to an “open request from the employer that is extended to all eligible employees.” This exception would not be applicable to home care or hospice providers, as aides are selected for each case based on the unique needs of each patient and the skills of the individual aide, including language requirements, cultural competence, physical requirements, expertise for particular conditions, etc.
  • The “unscheduled shift” exception where an employee finds another employee to cover his or her shift would not be applicable to home care or hospice providers as it is contrary to how aides are assigned to patients based on the needs of each patient and the skills of the aide and how the agency, not the aides, handle all communication and scheduling for patients.  Also, aides do not have the same type of routine contact with their peers as workers in other “fixed settings” because home care personnel largely work independently and rarely in the same space as their coworkers.
  • The proposed rule would be contrary to and undermine the state’s recent reform efforts, including the Delivery System Reform Incentive Payment (DSRIP) program and Value Based Payments, which rely on a flexible, seamless and expeditious direction of resources and case assignment.
  • The rule would create an extreme and unreimbursed burden on an agency’s scheduling staff that would have to institute and monitor new practices to avoid new costs under this proposed rule.
  • Providers participating in the Traumatic Brain Injury program must include a stipulation written on the service plan that it is obligated to remain flexible and responsive to the needs of our participants as well as ensuring the health and safety of each participant. The DOL proposal is contrary to this flexibility under the waiver program, as providers would be “penalized” under the unscheduled shift provision.
  • Home Health Aides are per diem shift workers by design. This ruling is not conducive to the way aides schedule their own time.
  • Aides who work at home are technically available to work for any shift but when you call them they can accept or reject the case. The proposed “on-call pay” requirements — whereby employees who are required to be “available to report to work for any shift” must receive at least four hours of “call-in pay” — are contrary to the practice of care at home and the needs of patients cared for at home and in the community, and will add new costs.
  • The proposal that four hours of call-in pay for reporting to work and for cancelled shifts can be reduced to a lesser number of hours is too restrictive and again does not consider the practice of care delivered at home.  It would allow a reduction to the lesser number of hours that the employee “normally works for that shift,” as long “as the employee’s total hours worked, or scheduled to work, for that shift do not change from week to week.”  Home care hours, like patients’ needs, are very fluid and constantly changing based on individual patient changes, new patient admissions and patient discharges. In this situation, hours change from week to week. Thus, home care providers would not fall under this “exception.”
  • Patient referrals are offered daily to home care agencies and the agencies have only seconds to accept or decline the referral. Certified Home Health Agency (CHHA) referrals are for services to begin the same day of the referral or the day after, making it impossible to schedule a shift 14 days in advance. This is the norm for these referrals, and the proposed 2 hours of additional call-in pay will place great financial burdens on all agencies that already have to operate with an ever-decreasing operating margin.
  • The exception for employees whose weekly wages exceed 40 times the hourly minimum wage will apply to a small amount of the workforce as most of the workforce either works under 40 hours per week by choice, or works more than 40 hours but splits these hours across more than one agency, so no individual agency would ever solely meet the 40 hour threshold for the worker.

STEP 3: Close Your Letter

Close your letter with an invitation to provide further feedback, as follows:

I thank you for the opportunity to comment on behalf of my organization and its patients. If you have any further questions about my comments or require additional information about the impact of this rule, do not hesitate to contact me at [insert phone number and e-mail address].