Last night The New York State Department of Labor posted emergency regulations urging that home healthcare providers continue being paid for a 13-hour day in cases where that worker is providing 24-hour live-in care. The guidance was consistent with the Labor Department’s 2010 policy which reasoned that in essence, workers should not be paid for the time they are sleeping and eating, even if one is sleeping and eating somewhere not of their choosing in order to provide care.

Last month, a State Appellate Court ruled in favor of two home healthcare workers who filed suit claiming the 13-hour rule violated New York State’s minimum wage laws, since they were made available to work 24-hours a day by being live-in home health workers. The story was first reported here by Politico’s Dan Goldberg.

New York’s health care providers are concerned about the court’s ruling since they could be on the hook for an additional 11 hours of payment per day for each worker. Moreover, the court opened the door to 6 years of back pay for each those workers who have previously been paid under the 13-hour rule. To put that in perspective there are 125 providers statewide representing 350 offices, according to the New York State Association of Health Care Providers. The ruling could affect thousands of their workers potentially bankrupting the industry. In a statement HCP President Claudia Hammar says,

“The emergency regulation upholds the State’s position that home care workers should be paid for 13 hours of a 24-hour lift-in shift, provided allowance is made for sleep and meal time. While we appreciate that the State issued this guidance, HCP and the home care industry need the State to take immediate steps to ensure that home care providers that have followed previous State Labor 24 hour live-in payment guidance in good faith will not be held liable for six years of retroactive payments. These retroactive payments will bankrupt a significant number of home care agencies, jeopardizing essential care for New York’s most vulnerable populations.”

For now, the Department of Labor seems to be telling the industry to just ignore the court’s ruling. A spokesperson for the Department of Labor could not immediately be reached for comment.

**UPDATE**

George Gresham, President of 1199SEIU United Healthcare Workers East issued a statement disagreeing with the Cuomo Administration’s continued policy regarding the 13-hour rule. Gresham says,

“While we understand the significant cost of complying with the recent court rulings overturning decades of New York State policy on 24-hour homecare cases, we strongly believe that it is unfair to continue to ask home care workers to bear the financial burden of providing needed round-the-clock care.”
 In a statement, Cullen Burnell, a spokesperson for the Department of Labor says,

The amended regulation adopted by the Department of Labor on 10/6 codifies the Department’s longstanding interpretations of the statutory requirement to pay for “each hour worked”.  These interpretations are also consistent with well-established federal standards that have been on the books for years.  The amendment clarifies the regulation the Appellate Court relied upon to reach its decision.