LeadingAge NY Seeks to Intervene in Home Care Wage Case

LeadingAge New York has joined with two other associations seeking to intervene as amici curaie (“friend of the court”) in Andryeyeva v. NY Home Attendant Agency, a lawsuit involving pay requirements for home attendants. 

The Andryeyeva case concerns whether 24-hour (“live-in”) home care attendants must be paid minimum wage for each hour of a 24-hour shift and whether such attendants working for the defendant agency may be certified as a class in the action. NYS Supreme Court (Kings County) ruled the aides may be certified as a class based on the court’s conclusion that live-in home attendants must be paid for each hour of the 24-hour shift. This ruling conflicts with longstanding NYS Department of Labor opinions, which provide that third-party employers can pay live-in home attendants for 13 hours of a 24-hour shift if the aide is afforded eight hours of sleep, five of which are uninterrupted, and three uninterrupted hours for meals.

LeadingAge NY and the other associations (the Home Care Association of America and Home Care Association of New York) are concerned that if the Supreme Court decision is upheld by the Appellate Division, live-in attendant services would become cost prohibitive unless adjustments are made to Medicaid, commercial and private payment levels to managed care plans and provider agencies. Agencies and managed care plans would not be able to afford such care for Medicaid recipients, and those that could afford the care would have to use multiple aides for a patient to hold down overtime costs. Live-in home attendants would also become prohibitively expensive for patients who pay privately for these services. The availability of these services for all types of patients would become more limited, increasing the likelihood of institutionalization for some patients.

In discussing whether to intervene in the case, the LeadingAge NY Legal Services Committee was also very concerned about the potential retroactive impact of an adverse decision. The statute of limitations for bringing New York Labor Law claims is six years – meaning back wages can be recovered from the time of the filing of a lawsuit going back six years in time. This could create significant financial exposure for member agencies and managed care plans that provided live-in services in prior periods.

The motion seeking permission for LeadingAge NY and the other associations to intervene in the case was filed on July 1. We will keep the membership updated on further developments in the case.

Contact: Dan Heim, dheim@leadingageny.org, 518-867-8866