This week, home health care providers in New York may have been breathing a sigh of relief after the state’s Department of Labor (DOL) re-emphasized that employers should pay caregivers for 13 hours of any 24-hour shift. However, conflicting statements are leaving providers in the state in limbo.
The DOL issued an emergency statement in amended regulations reinforcing the 13-hour rule after a court decided that caregivers should be paid for all hours of a 24-hour shift. Home health care stakeholders have argued that paying for all hours, particularly if the pay is retroactively mandated through a court order, could bankrupt providers.
The conflicting actions left some home health care providers unsure of how to proceed with 24-hour shifts—and what they were on the hook for when it came to hourly pay.
The 13-hour rule is a “letter of guidance that the Medicaid program, managed care plans and providers have followed in good-faith that allows employers to only pay for work hours, not including sleep and meal times,” Roger Noyes, director of communications of the Home Care Association of New York State, told Home Health Care News
“Essentially, the courts have said that this opinion letter is in conflict with DOL’s own underlying regulations, putting providers in limbo over the right course of action,” Noyes said.
The court conflict stems from two rulings issued in September by the New York Appeals Court, which said providers would have to pay caregivers back wages for 24-hour shifts. However, the DOL issuance may not be enough to combat the court outcomes.
“Importantly, while the emergency, revised regulations may provide some basis for the 13-hour standard, these regulations do not appear to directly address the massive retroactive legal or cost exposure for home care providers that has been prompted by the recent court decisions on this issue,” Noyes said.
At this point, providers may be standing by for more information from New York.
“More information is needed to understand the full intent and implications of this recent regulatory posting,” Noyes said. “In fact, the state is expected to issue a regulatory impact statement next week which we hope will offer a clearer window into the state’s intent and expectations for providers going forward. We also hope it addresses the question of retroactive liability.”
As is standard for state rulemaking, the emergency regulation lasts 90 days initially, and can be renewed for additional 60-day periods.