New York in-home care providers must now pay live-in home health aides for all 24 hours of their shifts, including sleep and meal periods, if they are not residential employees, according to two rulings issues by the New York Appeals Court. The ruling upholds a previous decision requiring 24-hour pay for live-in caregivers in the state.
These rulings contradict the common practice outlined by 2011 Department of Labor opinion letter that advised providers to pay live-in employees—residential or non-residential—for 13 hours of pay per 24-hour period, as long as the caregivers are afforded eight hours of sleep time, with at least five of those hours being uninterrupted.
The policy change will put debilitating financial strain on in-home care providers, according to Claudia Hammer, president of the New York Association of Health Care Providers (HCP), a trade association representing licensed home care services agencies, certified home health agencies, health related organizations and organizations that support the home care industry.
“HCP is extremely disappointed with the recent court decision ruling that non-residential employees should be paid for all 24 hours of a live-in shift,” Hammer said. “This decision is at odds with well-established rules of the New York State Department of Labor, which the home care agencies have relied on in good faith for the last decade. This ruling has the potential to collapse the long-term home health care system.”
The court decision came out of two cases, Andryeyeva v. New York Health Care, Inc. and Moreno v. Future Care Health Services, Inc., both filed by home health aides on behalf of themselves and other caregivers in similar working situations.
These cases follow another, Tokhtaman v. HumanCare, LLC, also filed by a home health aide and which the court concluded with the same ruling.
To meet these new standards, the state of New York may have to raise its Medicaid reimbursements for 24-hour shits. Home care providers could also end up limiting live-in services or even eliminating 24-hour shifts.
Providers may still be on the hook for backpay from the last six years, according to the Tokhtaman v. HumanCare, LLC case.
“Without interventions from the State, providers that are already struggling with low reimbursement rates will be exposed to new claims and will be unable to continue providing live-in services, directly jeopardizing the well-being of New York’s most vulnerable populations,” Hammer said.
Written by Elizabeth Jakaitis