Typically, litigation trends in any given industry are on a bell curve — activity peaks and then starts to drop, as companies button-up their practices. But in home care, litigation has been pretty steady over the last three years, according to Angelo Spinola, a shareholder and attorney at international labor and employment legal firm Littler Mendelson.
Many of the cases involve wage disputes — about 1,500 pay practice lawsuits have been filed against home care companies since 2015, Spinola said last week at the Home Health Care News Summit in Chicago.
For example, New York City officials have been investigating home care agencies following reports of noncompliance with labor laws since July 2017. The investigation has resulted in tens of thousands of dollars in restitution and fines, and was announced earlier this month by the New York City Department of Consumer Affairs.
At the Summit, Spinola offered the following advice and insight, edited for length and clarity, into what legal issues home health and private duty providers should have on their radar, and best practices for avoiding litigation:
On ADA accommodation claims:
Lawyers understand that if there is one pay practice issue at one company, it is likely happening across the industry. So, when you see a competitor being sued, the issue could be coming your way.
The other day, I had two clients sued on a new type of claim — it’s an Americans with Disabilities Act (ADA) accommodation claim and it has to do with your website and whether it is accessible to the visually impaired. Plaintiff lawyers have been targeting home care, so I sent a notice to all my clients saying, “Look out for this, it’s coming.”
I think there has been five or six of my clients that have been sued by the same plaintiff.
So, if you are seeing competitors being sued for something, chances are its coming your way sooner rather than later — and address it.
Also, there are consultants out there that can make your website ADA compliant.
On the rise of technology:
Tech can be a double-edged sword, because sometimes there is data or information or evidence of work.
For example, let’s say someone was charting and I can see that someone was in a note, charting, but when you compare that to the time-record they’re not on the clock.
More recently, the vendor community has done a much better job of focusing on compliance and trying to figure out what tools they can give a provider. Managing a remote workforce is difficult and its the employers’ obligation to say how much an employee worked — so it’s challenging, but vendors have increasingly become smarter. Vendors are helping providers now, by giving them tools like the integration of a time keeping system and electronic medical record (EMR), so providers don’t have two sets of data that may be inconsistent with each other.
On arbitration agreements:
I think as far as protection and avoidance of litigation, the number one thing that particularly larger providers can put in place is arbitration agreements with class action waivers. I can guarantee that you have pay practice issues, everybody does, it is a matter of degree.
But, employees on an arbitration agreement cannot pursue a class or collective action lawsuit — they have to pursue an individual action for the claim they have.
You can transform that potential exposure using this agreement.
Compensation for training has been a really big issue lately. A lot of staff training is often compensable training, not always, but generally it is. This is something to be aware of and consider — it is a state issue. If the training is related to certification for the caregiver, often that can be treated as non-compensable.
Also, scheduling laws are a big issue coming up in home care. There is one that is pending in New York State — basically, if you change a caregiver’s schedule within a certain amount of time there is a cost or premium that must be paid to the caregiver — whether it is an increase or decrease in hours.
Written by Kaitlyn Mattson