Recent Developments on 13-Hour Live-in Rule for Home Care Workers
As most members are aware, emergency regulations were put in place earlier this year which clarified and confirmed that home care employers can continue to follow the "13-hour rule" for live-in home care aide compensation. This rule permits employers to compensate home care workers for 13 hours of a 24-hour shift provided the worker is afforded eight hours of sleep (five uninterrupted) and three hours for meals. The emergency regulations were in response to a number of court decisions which questioned the Department of Labor (DOL) interpretation of the live-in regulations.
On Sept. 26th, the New York State Supreme Court, New York County, invalidated the emergency regulations. The court ruled that, procedurally, DOL had not established an “emergency” justifying adopting rules on an emergency basis under administrative law. Please review Hinman Straub’s memorandum on the subject.
Currently, DOL is in the process of adopting a permanent rule (not emergency-based) within the State's regulatory promulgation process. Further, in the coming months, we will see a decision come down from the New York State Court of Appeals which will settle this issue in the courts. LeadingAge NY has submitted an amicus brief in this case in conjunction with the Home Care Association of New York State.
LeadingAge NY is also participating in a private home care roundtable event in early October to discuss the 13-hour rule. At the invitation of the Assembly Health and Labor Committee chairpersons and staff, LeadingAge NY, other home care associations, labor representatives, and consumer and worker advocates will discuss this issue and consider the outcomes of the Court of Appeals case and any alternate resolutions to this issue. Thank you to those members who assisted us in collecting data on the number of live-in cases currently assigned. The Hebrew Home at Riverdale will join LeadingAge NY at the roundtable as a provider representative.
The oral argument in Andryeyeva v. New York Health Care, Inc. before the Court of Appeals will be scheduled later this year. We will update the membership on further developments in this case. Oral argument in the case will likely be live-streamed and LeadingAge NY will provide the link when it is available.
Contact: Meg Carr Everett, meverett@leadingageny.org, 518-867-8871