Round-the-Clock Care, Half-the-Clock Pay

Socorro Toribio emerged into bright sunshine on a recent Wednesday morning in July after spending four days in her bedridden client’s Lower East Side apartment. Although the sixty-year-old home health aide said she hadn’t stepped outside since arriving at work the previous Saturday, she was eager to head home to the Bronx apartment she shares with her eighteen-year-old grandson.

“A lot of work last night,” Toribio said in Spanish, letting her head, wrapped in a Dominican flag scarf, tilt to one side.

Yet despite feeling sleep-deprived, Toribio didn’t head home after work that day. Instead, she took the train to Downtown Brooklyn to the headquarters of the state Department of Labor, where home health aides held signs in Spanish, Chinese, and English denouncing the state policy under which they are allowed to be paid for just thirteen hours of their 24-hour shifts.

The state labor department’s longstanding guidance to home care employers is based on the assumption that aides are able to sleep and eat during the other eleven hours, mostly uninterrupted. But workers say that’s rarely the case. While working consecutive 24-hour shifts, for example, Toribio says she gets up multiple times each night to check her diabetic patient’s blood-sugar levels, help her change position, change her diaper, and respond to the frequent night-time outbursts that come with advanced Alzheimer’s disease.

“Some nights the patient calms down and I get a little rest,” said Toribio, “but not much.”

While Gov. Andrew Cuomo has touted his support for the “Fight for $15” — the movement that succeeded in raising the minimum wage to $15 in New York City by the end of 2018 — his administration is aggressively pushing back against workers like Toribio who are fighting to get paid for a full day of work. Last year, multiple courts ruled that home care workers should get paid for every hour they’re at their clients’ homes. Yet since then, the state Departments of Labor and Health have actively sought to preserve the thirteen-hour policy, arguing that the higher costs could destroy an industry that allows elderly and disabled New Yorkers to remain in their homes.

Critics of the administration’s response say it’s time for the state to come up with a way to sustain the largely government-funded home care industry without relying on free labor. Home care industry groups estimate that could cost billions of dollars. But without the administration revealing, at the very least, how many patients actually receive 24-hour care, it’s hard to get a clear picture of what the impact would be.

What’s needed, says Assemblymember Richard Gottfried, who chairs the Assembly Health Committee, is “coming up with a cost estimate and then making sure there’s money in the state budget to pay for it. It is abhorrent to tell workers that we expect them to work without getting paid.”

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The number of retirement-age Americans is set to double between 2016 and 2060, according to the Population Reference Bureau, and the demand for home care is rising. But few states make the service as accessible as New York, which helped pioneer the shift toward home care as a safer, more cost-effective, and more humane alternative to nursing homes. In New Jersey, for instance, it’s much more difficult for an older adult to qualify for home care under Medicaid, the government-funded, state-run health insurance program for low-income residents.

Because Medicaid coverage is more robust for home care in New York, 24-hour care is more common. “An aging population is not unique to New York state but New York is unique in that it has an opportunity to set a tone for what home care could look like,” said Amy Torres, director of policy and advocacy at the Chinese-American Planning Council Home Attendant Program, which provides home care services. “That means fully funding the work people are doing and making it so the 24-hour shift is not commonplace.”

Home care accounted for $9.3 billion of New York’s roughly $70 billion Medicaid budget last fiscal year, according to the state Department of Health. In New York City, where more than three quarters of the state’s 224,400 home care employees work, 93 percent of home health aides are women and 79 percent are immigrants. The union 1199SEIU United Healthcare Workers East has estimated that 8 percent of the home health aides in New York state work 24-hour shifts.

The Cuomo administration has declared that it is adding $6 billion in new funds for home care from 2015 to 2021 to pay for the long-overdue gains the workforce has made in recent years, such as overtime and minimum wage protections that were extended to these workers for the first time in 2015 by the Obama administration. Yet the thirteen-hour policy is one relic of home care’s past that has been particularly hard to shake.

Recently, home care workers have filed more than 145 class-action lawsuits against New York home care agencies challenging the policy and seeking back wages for workers’ uncompensated hours, according to the law firm Littler Mendelson, which represents home care agencies. In October, workers achieved a victory when two state appellate divisions ruled in their favor in lawsuits that have the potential to set a precedent for other cases.

But home care employers cautioned at the time that if the rulings are upheld by the state’s highest court, they will lead to rising costs that could cripple the industry. In addition to doubling the cost of providing 24-hour care, the rulings could make home care agencies liable for back wages for any aide who has worked a 24-hour shift in the last six years, per the statute of limitations in New York.

Littler Mendelson has calculated it would cost a single home care employer an estimated $600,000, plus fees, to pay the back wages owed to just a single home health aide if a court rules in the aides’ favor. (That estimate, though, is based on the unlikely scenario of an aide working 24-hour shifts, seven days a week, for the same agency for the entire six years.) Meanwhile, the price of 24 hours of home care under the current wage regulations in New York City would go from about $222 per day before overtime and administrative costs to about $410 — similar to the average cost of a day in one of the city’s nursing homes.

“In other cases employers always suddenly announce that they’re impoverished when they get sued for having egregiously violated people’s rights,” said Richard Blum, an attorney with the Legal Aid Society who has represented both home care workers and patients. “And we see when regulations are proposed that would ameliorate conditions for workers the industry comes out and says, ‘Oh no, we can’t afford that; we’ll go bankrupt.’ We hear that all the time.”

The difference here, Blum said, is that much of home care in New York is publicly funded. Both labor advocates and home care employers hold the state responsible for the situation the industry is in, and are calling on the state to help clean up the mess it created. But how it should go about doing that is a point of contention.

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On the same day that Toribio and her colleagues rallied outside the state Department of Labor, the department held a public hearing on proposed regulations to codify the thirteen-hour policy into state law, in an effort to fortify it against lawsuits saying the state is violating its own minimum-wage laws. The department issued a temporary update to that effect in October, and has been renewing it without public input ever since by categorizing it as an “emergency”; the department finally scheduled the public hearing in order to make the regulations permanent.

Keeping the thirteen-hour policy intact is necessary to “prevent the collapse of the home care industry, and avoid institutionalizing patients who could be cared for at home,” the Labor Department said in the explanation for its emergency regulations in the state register.

The state stepped in with the emergency regulations after many home care agencies moved to immediately comply with the court rulings rather than risk further liability. After the court decisions came out last year, some agencies started demanding more money from Medicaid, threatening to discontinue care for 24-hour patients if they didn’t get enough funding to pay their employees for all 24 hours, according to emails sent to the state Health Department that were obtained through a Freedom of Information Law request.

“This is a very serious issue for us as Good Care Agency closely adheres to NYS labor laws,” the home care provider wrote in an email to Elderplan/Homefirst, a Medicaid-funded health plan it had a contract with, in May of last year. “We only see two ways this scenario will go from here. Either we are provided with new hourly rate authorizations for live-in cases or we request for these cases to be removed from Good Care Agency effective immediately.”

Elderplan forwarded that email and others like it to the Health Department. It also forwarded the department a letter it sent to Good Care Agency reprimanding the home care provider because it had threatened to “abandon one or more of our members.”

The state’s emergency regulations were supposed to quell home care agencies’ fears and stop this chilling effect on 24-hour care, but they haven’t necessarily succeeded. “Many agencies have stopped providing these services,” making it difficult for Medicaid beneficiaries who need 24-hour home care to find it, Claudia Hammar, president of the New York State Association of Health Care Providers, said at the hearing in July.

Meanwhile, home care workers and grassroots labor organizations have sued the Labor Department and its commissioner, Roberta Reardon, to void the emergency rules, calling them a “drastic departure” from the state’s minimum wage law.

State Assembly members Harvey Epstein and Jo Anne Simon say they want to work with stakeholders to come up with comprehensive policy solutions rather than simply holding onto the thirteen-hour policy at all costs. Epstein, who was elected to the assembly in April after serving in a senior role at the Urban Justice Center, a nonprofit legal organization that represents some of the home care workers who have sued their employers, says, “If the Department of Labor enters these rules [reinforcing the thirteen-hour policy] then it’s up to us in the Assembly and the Senate to pass legislation to overturn this really ridiculous idea that people don’t have to be paid for the hours that they work.”

Cuomo has yet to publicly weigh in on this issue and his office did not respond to a request for comment. But when the governor wants to support a cause — even an expensive one — he has found a way to fund it.

Back in 2016, Cuomo wasn’t deterred by concerns home care industry groups raised that they wouldn’t be able to afford a higher minimum wage. After the Fight for $15 was successful, Cuomo promised Medicaid would cover the cost of the increase for some home care agencies and other health care providers, which will soon amount to more than $1 billion annually.

In the last budget session, Cuomo’s fundraising proposals for health care were diverse: They included new taxes on private health insurers, surcharges on opioid manufacturers, and a tax on a major sale of a nonprofit to a for-profit company. Cuomo also proposed reining in rising home care costs by limiting eligibility to higher-need patients, although that measure wasn’t included in the final budget.

“We make difficult financial decisions all the time,” says Epstein. “The answer can’t be that the government can’t do it, and that this has to be on backs of low-wage workers who are already some of the lowest-wage workers in the country.”

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Toribio moved to the U.S. from the Dominican Republic about twenty years ago and started working as a home health aide shortly after, reasoning that it was better than working in a factory. “If you don’t speak English there aren’t a lot of options,” she said. Toribio has been with her current patient for about a decade, and says she’s developed a lot of affection for the woman, who is only about fifteen years her senior. While some of her colleagues are calling for an end to 24-hour shifts altogether, she says she just wants to be paid for all the hours she works and “to not be abused.”

Home care agencies insist that no one should be working 24-hour shifts in the first place. “None of our employees is responsible for providing 24 hours of care,” said Jocelyn Lee, executive director of First Chinese Presbyterian Community Affairs Home Attendant Corporation, the agency that employs Toribio. “Workers are responsible for reporting to the agency if they are unable to get their uninterrupted sleep due to the patient’s condition so that a nurse can visit the patient to assess whether a different level of care is required, and to ensure the worker is properly compensated for all hours of work.”

But during the hearing, worker after worker testified before Labor Department officials that they had not been paid for the hours they worked at night, even if they reported them; two aides said they were taken off of 24-hour cases after reporting nighttime hours.

Asked if she had ever reported the nighttime hours she works to her coordinator at the agency, Toribio scoffed. “What for?” she said. “The coordinator knows.”

Although aides are officially supposed to get compensated if they don’t get the requisite amount of sleep and meal time, Medicaid funding for home care isn’t structured to accommodate that level of flexibility. Typically, Medicaid pays a flat monthly rate for each member to cover the cost of the services they need.

A spokesperson for one nonprofit agency that paid 24-hour aides for the nighttime hours they reported for a period of time said, under the condition of anonymity, that the organization pulled from its operating budget and funds raised on its own to cover the extra hours.

Home care patients who require a level of care that regularly prevents 24-hour home attendants from getting the requisite sleep and meal time are supposed to be approved for “split-shift” care, which is broken up into twelve-hour shifts performed by two different aides. However, in the city that level of care is notoriously difficult to get approved by Medicaid.

Shirley Ranz, a retired pharmacist who lives in Sheepshead Bay, Brooklyn, said the state’s labor policies led her to find an alternative to 24-hour home care for her mother, even though she qualified to receive it under Medicaid when her mother’s Alzheimer’s started to advance.

Ranz said her request to have aides care for her mother in two twelve-hour shifts was denied, even though her mom would often wander at night. “Sometimes the aide would come in the morning and every dish and pot and pan in the kitchen would be spread all over the floor,” Ranz said. Eventually Ranz’s brother moved into their parents’ house to care for their mother.

“When I learned the aide would only be paid for thirteen of 24 hours I had two reactions,” Ranz said. “One was, ‘How could they do this to these people?'” The other, she says: “If the aide can’t get to sleep at night, it’s a danger to my parents as well as to her.”