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April 19th, 2012 by Pasadena Independent
Senior Homecare – Pending Legislation Impacting California Seniors
By L. Lindsey Rehfeld, M.A.
Owner of Visiting Angels, Foothill Communities
Faculty for California Association of Health Services at Home
The senior care industry in California is growing all around us as baby-boomers transition into retirement by the millions each year. For senior citizens and their families, the choices available for various kinds of assistance are myriad and multiplying. Here in California and on the federal level, new legislation is coming together to better regulate and license the non-medical homecare sector.
There has never been any governmental oversight in California, so it’s possible for almost anyone to open a business providing companionship and non-medical services in senior citizens’ homes.
Given the rising number of mail and telemarketing scams targeting seniors today, it stands to reason you want to be equally careful whenever you are hiring someone to come into your home. More oversight is welcomed by professionally managed and conscientious companies for attempting to weed out less-than-conscientious competitors, and providing a way for seniors and their families to determine the difference.
But as often happens, the two bills may have swelled and been co-opted to the point where they are reaching too far and creating more problems than they solve. The regulation, while beneficial to a point, is likely to force homecare companies to adopt practices that both interfere with their quality and continuity of services, and raise their cost of doing business. The result will mean higher priced services across a very popular and vital industry.
What is Non-Medical Homecare?
Non-medical Senior Homecare has become a prolific industry in California and throughout the country. Local and regional agencies employ caregivers that provide living assistance in private homes. These caregivers provide non-medical assistance with meal preparation, hygiene and personal care, transportation, light housekeeping, medication reminders and more. Seniors overwhelmingly prefer staying in their own homes, and the use of private caregivers has greatly increased over the past decade.
Homecare services are paid for privately by the senior or their family. They are paid on an hourly or a daily basis. Private Long Term Care Insurance and Veteran’s Aid & Attendance Benefits can also pay for these services. Medicare or other public funding does not pay for non-medical homecare.
Over half of the states in the country have established licensing requirements for non-medical homecare. Most families and healthcare professional are surprised to discover that California does not have licensing for non-medical homecare. Since there is no regulation in California, the quality and reliability varies greatly.
Full-service homecare agencies protect seniors by completing criminal background checks, TB Tests and reference checks on all employees. Both seniors and caregivers are protected with Professional and General Liability Insurance and Worker’s Compensation Insurance carried by the agency. The caregivers are considered employees, so all payroll taxes are filed and paid through the agency.
Referral Agencies and Registries provide 1099 caregivers and shift the employment responsibility to the senior. Some process employee background checks and some provide liability insurance. Registries often charge less for their services, and are therefore an attractive alternative. However, seniors are responsible for liability, worker’s compensation and payroll compliance.
Many seniors also opt to find and employ their own caregivers. This seems like a more advantageous choice but is fraught with difficulty for those paying the bill because in this scenario, seniors are completely responsible for recruiting, retaining, paying, managing, insuring, and liability for the caregiver and themselves.
Caregivers and Labor Laws
Caregivers are currently classified as “personal attendants” at both the Federal and State Level. Many seniors require constant supervision to assure their safety. The caregivers are present up to 24 hours per day, and the senior cannot be left alone. There are many natural breaks throughout the day, but the caregiver does not physically leave the premises. Because of the nature of the work, personal attendants are exempt for overtime pay; they are also exempt from specified meal and rest periods. There are currently both Federal and State exemptions in place. These exemptions help keep these privately paid services affordable and possible for seniors choosing to remain safely at home with caregiver assistance.
From a Federal perspective, President Obama and the U.S. Department of Labor have called for an end to the companionship services exemption for home care workers through a federal regulation which would require overtime pay and minimum wage for companion workers providing non-medical care to clients at home. To counter that proposed policy change, federal legislation (H.R. 3066, the Companionship Exemption Protection Act) by Representative Lee Terry (R-NE) has been introduced to ensure the current definition of companionship services is maintained.
California Assembly Bill 889 (Ammiano) is also challenging this exemption. AB 889 is calling for the elimination of the overtime exemption and the meal & rest period exemption.
Eliminating these exemptions will dramatically increase costs to seniors. Caregivers will be scheduled for a maximum of 8 hour shifts and 40 hours per week. Continuity of care will suffer. Agencies will hire more caregivers in lieu of paying overtime. Mandated meal and rest periods will require alternate caregivers to cover breaks. The removal of this exemption is highly impractical and logistically near impossible.
The homecare industry in California does need regulation to assure consumer and employee safety. Although minimum standards are established, many agencies do not comply since there is no oversight.
The California Association for Health Services at Home (CAHSAH.org) established homecare agency certification in 2007 to help consumers and the healthcare referral community assure agency minimum standards are being met. Over 200 agencies are certified, and CAHSAH believes that this certification is an important step toward compliance in California.
California Senate Bill 411 (Price) is currently in Sacramento. This bill requires agencies to be licensed and follow aforementioned standards in hiring and protecting employees. CAHSAH, along with the homecare industry believe that these standards are important and necessary to assure safety for seniors and caregivers alike.
SB 411 also includes requirements for each individual caregiver to be certified annually and to be registered on a public website. This public website poses a security and privacy concern for home care aides, who are mostly women, and may not want their location and employer made public. CAHSAH considers this unnecessary and excessive. The Department of Social Services Estimates the cost of SB 411 at $25 Million every year and $3 million in upfront costs. The majority of these costs are associated with the certification of home care aides, and the development and maintenance of the website. In addition, homecare agencies will bear a burden of $20K – $30K annually to certify and register their employees. This is at least four times the licensing cost of Home Health Agencies in California, who provide skilled medical services. This additional cost to homecare companies will ultimately be passed along to the seniors they serve since virtually all services are paid privately with no public money.
CAHSAH and the Homecare Industry is working diligently to amend this SB411 and to defeat AB889 in California.
On a federal level, CAHSAH encourages support for H.R. 3066, the Companionship Exemption Protection Act. Home care providers are gathering support for this legislation by reaching out to congressional representatives and asking them to cosponsor this important bill. Congress has the authority to intervene and keep the companionship exemption in place. Congressional members need to be aware of how important it is to maintain the exemption so that home care remains affordable and accessible.
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