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PHI Provides Guidance for New York State Officials to Successfully Implement the New Federal Home Care Rule, Effective Today

October 13, 2015

— Key Steps Include Requiring Workforce Data Collection and Creating a Home Care Worker Ombudsman —

Bronx, NY — PHI (Paraprofessional Healthcare Institute) has released new policy guidance to help New York State officials effectively implement the new U.S. Department of Labor (DOL) Home Care Final Rule. These considerations — described as "five key steps" — are meant to ensure that New York's 300,000 home care workers are paid a fair wage in a timely manner, and elders and people with disabilities experience no disruption in their home care services and supports.

The new DOL home care rule — effective today — extends federal wage protections to 2 million home care workers across the nation under the Fair Labor Standards Act (FLSA), including the federal minimum wage, time-and-a-half pay for overtime, and pay for time spent traveling between clients. Implementation of the rule, which was published in the Federal Register two years ago and scheduled to go into effect on January 1, 2015, was delayed by a court challenge from home care industry trade associations.

"Today's implementation of the federal home care rule marks an historic turning point for our nation's home care workforce and everyone who will need home and community-based services and supports," says PHI President Jodi M. Sturgeon. "Extending federal labor protections to home care workers is a significant step toward building the quality, stable home care workforce our nation needs, and we're proud to offer the guidance New York officials need to make it a reality."

In "Five Steps to Implementing the New Federal Home Care Rule" (pdf), PHI lays out what's needed to successfully implement the new rule, emphasizing the importance of stronger workforce data.

Across the country, many states lack sufficient data systems to assess the costs of overtime and travel pay on state Medicaid budgets. In New York, this data is essential because workforce shortages, particularly upstate, could increase overtime costs.

In its new report, PHI recommends action in the following five areas:

1. Collect current workforce data in order to accurately budget for new costs.

The state should implement new data-reporting requirements for managed-care plans, Licensed Home Care Services Agencies, and the fiscal intermediaries managing payroll for participants in New York's Consumer Directed Personal Assistance Services program.

2. Budget for costs associated with the new home care rule and ensure timely payment.

With accurate data, the state's Medicaid program should be able to project the fiscal impact of the new home care rule. PHI recommends the state set aside a new pool for transition funding, and begin immediately to collect data to evaluate the need for a reimbursement rate adjustment for Medicaid-funded providers.

3. Protect elders and people living with disabilities by ensuring flexibility in meeting high-hour needs.

To meet the support needs of all individuals who qualify for services, without compromising quality or the rights of people living with disabilities to live in the community, the state needs to ensure sufficient flexibility in making determinations regarding overtime hours.

4. Create a Home Care Worker Ombudsman position to inform workers of their new rights and to ensure appropriate compliance.

The New York State Department of Health, the Department of Labor, and other state agencies such as the Office for People with Developmental Disabilities should work together to create a Home Care Worker Ombudsman position, an oversight role that mirrors the nursing home consumer ombudsman but focuses on protecting workers.

5. Commission a labor market analysis to examine the interplay of workforce policies in different low-wage sectors and their impact on the supply of home care aides in different regions of the state.

The impact of federal labor protections for home care aides must be understood in the context of a changing labor market in which competition from other industries might severely diminish the available pool of home health aides and personal assistants.

Under state law, New York's home care workers have been guaranteed the state minimum wage and overtime pay after a 40-hour workweek; however, overtime wages were based on time-and-a-half of the state minimum wage rather than workers' actual hourly wages. In New York City and surrounding counties, the Wage Parity Law established a minimum-wage floor of $10/hour, beginning in March 2014; thus, overtime pay will increase by about $2 per hour. For the first time, the state's home care workers will be guaranteed pay for on-the-job travel, such as travel between clients.

The U.S. Department of Labor announced it will begin enforcing the Home Care Final Rule 30 days after the new rule takes effect (November 12), and it will exercise "prosecutorial discretion" until the end of the year to determine whether to bring enforcement actions.

Visit the PHI website to download "Five Steps to Implementing the New Federal Home Care Rule" (pdf) and for more information on the DOL Home Care Final Rule and PHI New York.

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PHI (Paraprofessional Healthcare Institute) works to transform eldercare and disability services. We foster dignity, respect, and independence — for all who receive care, and all who provide it. The nation's leading authority on the direct-care workforce, PHI promotes quality direct-care jobs as the foundation for quality care (www.PHInational.org).

Deane Beebe, PHI Media Relations Director; 718-928-2033 (office); 646-285-1039 (cell)

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