Home care companies that shy away from offering live-in caregiver services are often trying to avoid the potential legal risk it may bring to their doorsteps.
However, when providers do want to offer this service, it’s important to be informed about how to deliver it correctly in order to avoid legal landmines.
“My view on live-in and extended shift … is that the issue you have is setting it up the right way,” Angelo Spinola, home health, home care and hospice chair at the law firm Polsinelli, said Thursday during a webinar presentation. “If you set it up the right way, it’s not that challenging of an issue, but people see the lawsuits and think about it as more complicated than it is, and so they don’t bother to do it.”
Under the regulations of the Fair Labor Standards Act, a live-in caregiver is somebody who is truly living with their client in their private home. This means the client’s home is the caregiver’s only residence.
“They don’t have another place where they get mail, it’s their permanent residence,” Spinola said.
More commonly, live-in caregiver refers to individuals who reside with the client for 120 hours per week or five consecutive days. This is different from extended shift caregivers, according to Spinola.
“The main difference between a live-in and an extended shift caregiver is that with a live-in there’s more flexibility to utilize off-duty time,” he said. “In other words, you pay that live-in fewer hours per shift than you could do with an extended shift employee. The reason for this is that the live-in regulations will allow you to deduct off-duty time without that being considered a break in the shift, for purposes of sleep time.”
Under federal law, if the caregiver is at the home less than five days a week, providers should be paying them hourly, and it should be a minimum of 13 hours.
Still, incorrect assumption of hours is only one of the frequent issues that pop up when it comes to live-in or extended shift caregivers.
Another that comes up often is home care providers’ failure to understand the state law. For example, in some states caregivers must be allowed to leave the client’s home in order to utilize an unpaid meal break, while other states have different requirements.
It’s also important for the caregiver and the agency to have a reasonable agreement in place.
“If you don’t have a written agreement, what do you think the caregiver will say when you say ‘Oh, we had an agreement to deduct sleep time,’ and the caregiver is suing you over sleep time,” Spinola said. “They’re going to say, ‘I didn’t agree to that.’”
Another one of the biggest common issues is around flat-day rates.
“Trying to pick a number — this is what we’re going to pay for live-in [services],” Spinola said. “We’re going to pay the caregiver $230 a shift. That’s what we’re going to do, and that’s enough to cover minimum wage and overtime. We’re not going to worry about what the caregiver actually works, what their hours are, interruptions or things like that — this effectively treating the caregiver as though they were exempt from overtime.”
Rate manipulation is another no-no that agencies should do everything in their power to avoid.
Failure to record working time is another issue that often trips up providers. One best practice is implementing a paper timesheet and certification, according to Spinola.
Ultimately, providers who make it a practice to stay on top of the rules will see success, he believes
“It’s knowing the rule and then applying the rule,” Spinola said. “Utilizing the right compliance resources, the right agreements and timekeeping procedures. And then you’re going to be golden.”