New York’s “13-hour rule”—a term referring to the allowance of home care aides to be paid for just 13 hours of work instead of an entire 24-hour shift—is back in the spotlight after months of legal back-and-forth.
Under current regulatory policy, live-in aides working in New York do not receive pay during hours slept or meals eaten during a day-long shift. Five home health aides and two national advocacy groups—the Chinese Staff and Workers Association and the National Mobilization Against Sweatshops—are challenging that understanding in a lawsuit filed earlier this month in New York County Supreme Court.
The lawsuit is the latest attempt in a series of cases trying to change, eliminate or even seek retroactive wages from the 13-hour rule, an outcome that some stakeholders say could devastate the state’s home care industry. It was in response to these cases and other legal complaints when in October 2017 the New York Department of Labor issued an emergency regulation upholding the 13-hour compensation practice, renewing it twice since.
“These cases have been in motion for two or three years,” Roger Noyes, director of communications for the Home Care Association of New York State (HCA-NYS), told Home Health Care News. “They’re all at different stages and they’re all addressing a similar group of issues with various potential outcomes and ramifications.”
Because there are so many different cases at different levels of adjudication, it’s difficult to assess or predict final outcomes for home care agencies, Noyes said. But if agencies are found to be retroactively liable for back wages—a decision that currently hangs in the cross hairs—it could potentially put some out of business.
Additionally, if there was a reversal in the 13-hour rule, that could also mean added expenses for Medicaid. For patients paying out of pocket, the jump from paying for 13 hours of care to 24 hours of care would likely present a significant barrier to access as well.
“Going forward, the issue is, if aides get paid for every hour, it will cost the system an incredible amount of money,” Andrew Koski, HCA-NYS vice president for program policy and services, said. “If that funding should not be available or if the aides are not paid adequately, then you’re going to have basically very hard-to-find agencies and aides that are going to work these [24-hour care] cases… The only alternative [for patients] is to go without care, get less care than you need or go into an institution.”
In addition to the recently filed lawsuit, plaintiffs also sent a letter to Gov. Andrew Cuomo, imploring him directly to rescind the department of labor’s emergency regulation.
The state Court of Appeals is also set to weigh in on the 13-hour rule. It agreed to decide on Adryeyeva V. New York Health Care, Inc.—which could overturn the longstanding practice—in March, though a decision is not expected until sometime in 2019.
HCA-NYS intends to submit an amicus brief on the matter.
“There’s this feeling of limbo between what the underlying regulation is understood to be and what the interpretation of the regulation is understood to be,” Noyes said. “I think the most important thing for agencies is to get clarification on what the requirements are and have the reimbursement levels track with that.”
The New York Department of Labor is hosting a public hearing on the issue July 11.
Written by Robert Holly