Home Care Attorney: Bill Eliminating 24-Hour Home Care Shifts Unlikely to Pass

Lawmakers in one state made waves in the home care industry this September when they introduced a bill that would effectively eliminate 24-hour work shifts for caregivers. 

Providers in New York, where the legislation was proposed, worry the bill would drastically increase labor costs if passed. But those concerns could be for naught, according to one New York-based lawyer.

“We have a couple busy months of lobbying ahead of us,” said Emina Poricanin, partner and home care practice leader at New York-based Hodgson Russ. “But I don’t think this is going to get through.”

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Poricanin expressed her doubts recently at the Home Health Care News 2019 Summit in Chicago. Chiefly among them was financing.

Currently, home care providers in New York are only required to pay caregivers for 13 hours of work during a 24-hour shift, as long as workers are given certain uninterrupted breaks. Those include three hours of meal break time and eight hours of sleep, five of which must be uninterrupted.

Caregivers and advocates have tried to eliminate the “13-hour rule” for years, arguing that workers should be paid for the entire 24-hour shift. But ultimately, their efforts have been unsuccessful.

A long legal battle surrounding the rule ended earlier this year when New York’s highest court upheld its current interpretation, while also clarifying the rule’s mandatory break requirements.

However, the rate at which cases surrounded the 13-hour rule are popping up hasn’t slowed down. In fact, the opposite has happened, Poricanin said.

“We’ve actually seen an uptick because [few] home care agencies in New York complied with these standards,” she told summit attendees. “A lot of providers are struggling with the burden of proof that’s been hoisted on them.”

Things would only become more complicated if the new proposed legislation — which effectively goes around the 24-hour rule — is successful.

It would require home care providers to break 24-hour shifts into smaller units, with 12-hour shifts being the longest legally possible unless the caregiver voluntarily agrees to a longer shift. In turn, that could mean providers paying nearly twice as much payroll as they currently do for 24-hour shifts. 

While supporters are calling the bill a win for overworked, underpaid home care workers, Poricanin is calling the bill’s passage logistical unlikely, pointing to the large population of Medicaid-funded care recipients as one reason why.

“We have a huge Medicaid-side deficit,” Poricanin told summit attendees. “I’m not sure how this would be funded.”

The Home Care Association of New York State (HCA-NYS) previously expressed similar concerns.

“While noble in its intent, this legislation would impose a new multi-billion-dollar cost impact on the home care system without reimbursement to cover home care providers’ expenses caused by the bill’s expansion in the number of shifts and compensable hours,” HCA-NYS spokesman Roger Noyes previously told HHCN in an email.

Plus, New York recently implemented cuts to its Medicaid-funded home care program, the Consumer-Directed Personal Assistance Program (CDPAP), further reducing the bill’s likelihood of passage.

However, it’s worth noting that both of New York’s legislative houses are currently controlled by Democrats, who are often champions for workers.

“At the beginning at every legislative session, there are very aggressive pro-employee agendas,” Poricanin said. “Before they have been tempered by the Republican-controlled Senate in New York. Now with two houses controlled by the Democrats, it’s a little bit of a greater uncertainty, but I really don’t see this happening.”

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