With the Home Care industry already struggling to maintain proper staffing, and Medicaid restructuring their payment system a few years ago, the idea of getting 24-hour coverage by paying privately or through Medicaid has become cumbersome.

As a result of a recent ruling focusing specifically on the wages that should be paid to a live-in aide, less and less families who are paying privately for this service will be able to afford 24-hour coverage.

It has long been understood that if a family or Medicaid were providing 24-hour “live-in” care, that Home Health Aide would be paid for a 13-hour day.  They would be allotted 8 hours to sleep and an hour each for breakfast, lunch and dinner.  In a recent decision by the New York Supreme Court, New York County, the “13-hour rule” was held to be “null, void and invalid”.

  • The terms “live-in” and “sleep-in” have been redefined –
  • Live-in is defined as someone whose residence is that of their employer’s and who has no other residence
  • Sleep-in is defined as someone who works and sleeps in their employer’s residence but maintains a separate legal residence
  • The companionship exemption, which offers the option to avoid paying for sleep time, is specifically not available to third-party employers, such as home care agencies. It is an option only available to direct-hire domestic household employers.

With this mind-set of paying an aide 24 hours for care, there is growing concern that more and more seniors will find placement in nursing homes because it will be more cost effective.

There is also concern that these same issues will plague the MLTC (managed long-term care) and CDPAP (consumer-directed personal assistance plans) programs.  While we have not received any specific ruling on paying aides through these programs, it is just a matter of time.

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