HIPAA Compliance, Domestic Workers Bill of Rights Emerging as Key Home Care Legal Issues

In order to avoid costly legal issues, in-home care providers need to stay on top of the constantly evolving legislation landscape.

A major part of this is being proactive and getting in front of compliance before it becomes an issue, according to Angelo Spinola, attorney and shareholder at San Francisco-based legal firm Littler Mendelson.

“The companies that focus on compliance ahead of time do not have the same legal issues as the ones that deal with compliance after the fact, meaning they get sued over a problem, then they still have to fix the problem, but now they also have to litigate the problem,” Spinola said Monday during a presentation at the National Association for Home Care & Hospice (NAHC) Conference and Expo in Seattle. “The litigation over the problem cost 10 times more than fixing it in the first place — at least.”

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One way that providers can be proactive is by being aware of their compliance status. This includes auditing and documenting compliance measures, as wells as being familiar with state laws.

When compared to other industries, home care often falls far behind in regard to compliance, specifically wage-and-hour and pay-practice compliance, Spinola said.

In response to that pattern of behavior, the U.S. Department of Labor (DOL) — under the Trump administration — has been more active in pursuing lawsuits against the industry.

“The DOL is saying, ‘We are done telling you — and now we are going to show you. We are going to make examples of those companies that aren’t doing things the right way,’” Spinola said. “Typically, those suits are egregious, where someone is just not paying overtime at all, not paying travel time at all, misclassifying independent contractors — but there is still far too much of that.”

Some other practices that are commonly litigated are manipulation of pay rates, inconsistently reported hours, inconsistent time records and a lack of scheduling agreements for live‐in caregivers, according to Spinola.

In states like California, Hawaii and New York, providers need to be aware of the Domestic Workers Bill of Rights, legislation meant to extend workplace discrimination protections and establish wage standards. The legislation could have a profound impact on companies’ bottom lines, according to Spinola.

Overall, at least nine states have passed laws extending labor protections to domestic workers.

Among recent efforts, Sen. Kamala Harris (D-Calif.) and Rep. Pramila Jayapal (D-Wash.) introduced companion bills in July aimed at giving domestic workers basic labor rights.

“[Domestic workers] provide essential care and support to aging parents, people with disabilities, children and homes,” Harris said in a statement announcing. “However, our nation’s domestic workers have not been afforded the same rights and benefits as nearly every other worker, and it’s time we change that.”

Apart from Domestic Workers Bill of Rights, Spinola also pointed to the predictive scheduling legal efforts in states such as New York and Illinois, which would require companies to posts work schedules in advance and would cause employers to have to pay a premium on top of the wages owed to caregivers for last-minute schedule changes.

“This is absolutely unworkable in home care, where the schedule is constantly changing,” he said. “We’ve challenged this in New York and Illinois. We’ve been successful in getting a carve-out for home care because the legislators do not know your business.”

Likewise, Spinola urges providers to be aware of HIPAA compliance as it relates to Medicare Advantage.

“A lot of the non-medical home care providers are becoming aware of HIPAA obligations because if they are participating in the Medicare Advantage program when they weren’t before, all of a sudden they may be covered by HIPAA,” he said.

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