DOL Targets Home Care with Proposed Independent Contractor Rule

McKnight’s Home Care | By Diane Eastabrook
 
Home care agencies beware: The Department of Labor is poised to release a proposed rule today that will make it easier for the department to find that caregivers have been misclassified as independent contractors, rather than employees.
 
Labor Secretary Marty Walsh said the proposed rule will provide better guidance to employers and help them avoid misclassifying employees. 
 
“While independent contractors have an important role in our economy, we have seen in many cases that employers misclassify their employees as independent contractors, particularly among our nation’s most vulnerable workers,” Walsh said in a statement. “Misclassification deprives workers of their federal labor protections, including their right to be paid their full, legally earned wages. The Department of Labor remains committed to addressing the issue of misclassification.”
 
In a statement, the DOL singled out home care as one of nearly a dozen industries where worker misclassification is a problem. The DOL will focus on whether a worker is economically dependent upon the entity sourcing the client for work or if the worker is in, in fact, in business for themselves, Polsinelli Law, which represents home care providers, said. The current test, which has been in effect since early last year, analyzes five factors but places emphasis on two factors: the nature and degree of control over work and the worker’s opportunity to profit or lose money based on personal initiative or investment.
 
“The new proposed rule will focus on the ‘economic reality’ of the worker’s situation, ultimately asking: Are they economically dependent upon the registry/entity sourcing the client for work (and therefore an employee) or are they in business for themselves (and therefore an independent contractor),” the law firm continued in a recent email alert. 
 
Polsinelli said the proposed rule will also focus on whether the worker is integral to a firm’s business. For instance, if the business is matching a caregiver with a client, then the caregiver is integral to that business and should be classified as an employee.

The Notice is available here. 

Comments on the proposed rule are due on or before November 28, 2022.  As reported by NAHC, if the rule is finalized as written, the impact on the home-based care industry could be significant.

Renewal of Public Health Emergency Determination

On October 13, 2022, Secretary Xavier Becerra, Secretary of Health and Human Services, renewed the PHE for COVID-19. The renewal is for 90 days, through January 11, 2023. The renewal states:

"As a result of the continued consequences of the Coronavirus Disease 2019 pandemic, on this date and after consultation with public health officials as necessary, I, Xavier Becerra, Secretary of Health and Human Services, pursuant to the authority vested in me under section 319 of the Public Health Service Act, do hereby renew, effective October 13, 2022, the January 31, 2020, determination by former Secretary Alex M. Azar II, that he previously renewed on April 21, 2020, July 23, 2020, October 2, 2020, and January 7, 2021, and that I renewed on April 15, 2021, July 19, 2021, October 15, 2021, January 14, 2022, April 12, 2022, and July 15, 2022, that a public health emergency exists and has existed since January 27, 2020, nationwide."

CDC Expands Recommendations for Use of Bivalent COVID-19 Booster

Last Wednesday, the CDC expanded recommendations for the use of Pfizer-BioNTech COVID-19 bivalent vaccine for ages 5 through 11 years old and Moderna COVID-19 bivalent vaccine for ages 6 through 17 years old. The “updated boosters” vaccines target multiple strains of COVID-19—the original strain of the virus and 2 of the Omicron variants (BA.4 and BA.5).

The updated boost doses for this age group are already available for those seeking Moderna and arriving this week for Pfizer. Various providers will be offering the bivalent boost dose for this age group including local pharmacies, doctor’s offices and health departments.
 
Individuals may choose to receive either the Moderna or Pfizer bivalent booster, regardless of which primary series vaccine or original booster dose they received. The current monovalent vaccine is no longer available for those 5 and older for use as a booster but remains available to complete the primary series.

Those who are eligible to receive a bivalent booster dose right now include:

• Moderna Booster: Individuals 6 years of age and older if it has been at least 2 months since they completed their primary vaccination series or received a booster dose.

• Pfizer-BioNTech: Individuals 5 years of age and older if it has been at least 2 months since they completed their primary vaccination series or received a booster dose.

Home and Community-Based Services (HCBS) Webpage

HCBS Waivers provide opportunities for Medicaid beneficiaries to receive select long-term care services in their own home or community rather than institutions or other isolated settings. These programs serve a variety of targeted populations, such as people with intellectual or developmental disabilities, physical disabilities, and/or mental illnesses. Colorado offers a wide array of waiver programs with the goal of serving Coloradans in their preferred location. Offering robust waiver options supports the United States Supreme Court Olmstead v. L.C. decision which says that unjustified segregation of persons with disabilities constitutes discrimination in violation of title II of the Americans with Disabilities Act.

What is an HCBC Waiver?

An HCBS waiver program allows the state to waive some Medicaid requirements to meet the needs of individual populations. For example, a waiver program may help a member access in-home personal care, assist the member with making meals, or provide rides to doctor appointments or community activities. To access a waiver, a member must meet a level-of-care requirement unique to the waiver program for which they are applying. HCBS waivers provide a person with individualized care starting with the person-centered support plan. HCBS waivers have unique program rules. An HCBS waiver program may have a waitlist. Currently, Colorado offers ten (10) HCBS waivers.

About the HCBS Waivers webpage

This webpage includes the following areas of information:

• Waiver comparison charts for adult HCBS programs and children’s HCBS programs
• Waiver documents and lifecycle
• Links to individual waiver pages which detail:
• Eligible populations
• Benefits and services provided
• How to make an application
• Other useful links
• Public Comment Opportunities

We hope you'll bookmark the HCBS waivers page and share this resource with your organizations and networks.