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HCA’s Testimony Opens State DOL Hearing on 24-hour/live-in Rule

HCA led off the testimony at the July 11 state Department of Labor (DOL) hearing on proposed standards for 24-hour shift compensation provided to workers, including home health aides.

The DOL-proposed standards outline compensation requirements to explicitly exclude sleep time and meal periods from compensable hours. However, such standards for home care have been the subject of recent litigation, as extensively described for the membership and in our testimony, available here

HCA was joined at the hearing by a host of employer and worker stakeholders, including home care representatives, fiscal intermediaries, managed long term care plans, law firms and individual aides.

Our comments focused on home care applicability of the proposed rule, and its significance to the stability of the system, the state, the patients and the workers themselves. We emphasized that the funding and rules for home care service delivery are subordinate to state and federal dictates and payment levels. Therefore, the standard of paying aides for 13 hours on live-in cases (also known as the “13-hour standard”) is dictated by longstanding DOL and state Department of Health (DOH) rules and methodologies authorizing and paying for these services.

HCA further emphasized that, under this standard, aides are not precluded from being paid for more than 13 hours if attending to their patients’ needs results in them not getting 8 hours of sleep (of which 5 hours are uninterrupted) and 3 hours for meals.

It is unclear how DOL will proceed on this proposed rule or a similar home care-specific emergency rule that DOL issued in October 2017 (and subsequently renewed numerous times) under which DOL codified “the Commissioner’s long-standing and consistent interpretation that compensable hours worked under the state Minimum Wage law do not include meal periods and sleep time of home care aides who work shifts of 24 hours or more.”

HCA has reached out to state DOL and will provide further details once we learn more. f.

HCA has worked extensively for stability of the “13-hour rule” for 24-hour/live-in cases, including advocating for DOL and DOH guidance and support, submitting amicus briefs on important court cases that involve challenges to this standard, and holding member briefings and education programs on this vital provider and patient issue.

 

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