Live-in 24 Hour Case Argued

February 12, 2019

By: Hermes Fernandez

The State Court of Appeals, our State’s highest court, heard argument yesterday on the important question of whether home health care aides who are working twenty-four hour live-in shifts must be paid for twenty-four hours, or can be paid at a per diem rate based upon thirteen hours. This question applies equally to personal assistants in the Consumer Directed Program. Two lower courts – the First and Second Departments – have held that non-residential twenty-four hour live-in aides must be paid for twenty-four hours. Federal courts have reached the opposite conclusion. 

Bond, Schoeneck & King filed an amicus curiae brief on behalf of the Consumer Directed Personal Assistance Association of New York State arguing that the law authorized the payment of the per diem amount. 

As Home Care and Consumer Directed providers all know, the Medicaid reimbursement rate for twenty-four live-in care is based upon thirteen hours. That thirteen hour per diem conforms to long-standing guidance from the State Department of Labor. The Department has codified that guidance in a series of emergency regulations. Importantly, the Department of Labor guidance, and the emergency regulations, makes clear that an aide paid on the thirteen hour basis also must be paid for meal times and sleep time if the meal times are interrupted or the aide does not receive five hours of uninterrupted time for sleep. 

The key concern of the Court of Appeals, based upon the questions and comments made by the seven members of the Court during the argument, appears to be the level of deference the Court should afford to the position of the State Department of Labor. The application of the State’s wage and hour laws, in the first instance, is the province of the State Department of Labor. The Department of Labor is deemed to have the expertise to understand the intricacies of the labor market, including how the wage and hour laws should be applied in the labor market’s varied circumstances. If the Court defers to the Department of Labor, it is very likely the Court will uphold the application of the thirteen hour per diem. If the Court does not defer, and concludes that the Department’s guidance has been erroneous, the Court likely will conclude that non-residential live-in twenty four hour aides must be paid for twenty-four hours, without regard to their break times. 

If the Court of Appeals rejects the Department of Labor’s guidance, Home Care and Consumer Directed agencies could face huge back pay demands. Even if the Court follows the Department’s guidance, Home Care and Consumer Directed agencies should think twice about accepting non-residential twenty-four hour live in-cases. The Department of Labor’s guidance and emergency regulations are strict. Aides and Personal Assistants must receive three one hour meal breaks. If any break is interrupted, the Aide or Assistant must be paid for the hour. Aides and Assistants are also entitled to an eight hour sleep break. They must be paid for any interruption, and if they do not receive at least five consecutive uninterrupted hours, then they must be paid for the entire eight hours. An appropriate place to sleep must also be provided, or the thirteen hour per diem is inapplicable. Those burdens all fall on the Home Care or Consumer Directed agency, since the Medicaid reimbursement is set at thirteen hours. An agency must have a plan to minimize these risks before accepting live-in twenty-four hour cases. We are available to discuss strategies to do that.