Guest Post: Payment of Home Health Aides

Today’s guest blogger is employment lawyer Michael Mason. Attorney Mason practices at Bennett and Belfort in Cambridge, Massachusetts; and has litigated and mediated numerous employment law cases representing both employers and employees. Here are his thoughts about a problem which comes up regularly:  the payment of home health aides.

A recent New York Times blog post  described the push by home health care aides to change federal wage regulations.  Currently, federal law does not guarantee home health aides any minimum wage, and it does not require that home health aides be paid overtime.  As the population ages and the demand for home health care skyrockets, many home health care workers find themselves working long hours for little pay.  This is in contrast to workers performing the same job at nursing homes, who are guaranteed a minimum wage and overtime pay under federal law. Thus, industry groups and even President Obama have spoken out about the need to provide greater protections for home health aides.

A Massachusetts resident who hires a home health care aide in the midst of this recent public discourse may understandably conclude that their health care aide does not need to be paid the minimum wage or overtime pay for any time worked in excess of 40 hours in a week.  However, it’s critical for anyone hiring a home health care aide in Massachusetts to know that under state law, these workers are not exempt from minimum wage or overtime requirements.

Unlike federal law, Massachusetts law does not make home health aides exempt from minimum wage or overtime requirements, and when a conflict exists between state and federal wage laws, the scheme that provides greater protection for the employee is the one that applies.  Regardless of their exemption under federal law, home health aides in Massachusetts must be paid at least the minimum wage (currently $8.00 per hour) and must be paid one and one-half times their usual rate for all hours worked in excess of 40 hours in a given week.

In light of the severe civil and criminal penalties that may be levied for violating wage and hour laws, it is highly advisable that anyone hiring or employing a home health care worker seek a qualified employment law attorney to advise them on compliance with the law.

Your end-of-life plans won’t work if you don’t talk about them

The headline seems obvious, right? But unfortunately, failing to tell your loved ones what type of care you would want if you suffer from an illness which will eventually lead to your death is all too common. The Boston Globe had an essay a few weeks ago, which was written by a young physician who had observed the results of a failure to communicate:

Mrs. M found herself at home, unable to breathe. Her husband called 911 and she was rushed by ambulance to the emergency room. As her shortness of breath worsened, all she could say was “help me.” The medical team immediately jumped into action ordering blood work and a chest X-ray, placing an IV line and administering antibiotics. Eventually, anesthesia was called to insert a breathing tube and Mrs. M was placed on a ventilator because she could not breathe adequately on her own. Unfortunately — and unbeknownst to anyone present — this was not the type of help she sought.

Mrs. M had spent the last few months under the care of a hospice nurse with whom she had developed a close relationship. On several occasions, she explained to this nurse that she had no desire to be placed on a ventilator again, as she had been so many times in the past. The next time her lung disease worsened, she wanted medicines to make her comfortable so that she would not feel the awful sensation of ‘air hunger’ that accompanied her severe shortness of breath. She knew that her lung disease was slowly killing her, and she hoped to spend her final days at home, comfortable and at peace, rather than in a hospital hooked up to a machine.

 

To ensure that her wishes would be met, Mrs. M designated her husband as her official “health care proxy” should she lose the ability to make her own decisions. In Massachusetts, this involves signing a document designating a spouse, family member, or friend to take responsibility for health care decisions if an individual is unable to do so. When we as doctors can no longer communicate directly with a patient because of their mental or physical illness, we seek the advice of the health care proxy so as to best honor our patient’s wishes.

 

While Mrs. M had outlined her desire for comfort-focused medical care to her nurse, she never broached this difficult subject with her husband. He was unaware that she never wanted a breathing tube or ventilator, or to be re-admitted to the hospital. Only later, after speaking with Mrs. M’s nurse, did he understand how much his wife had quietly suffered from her disease and why she hoped to pass naturally at home rather than in the midst of aggressive medical care.

You can’t blame the doctors for taking action if you do not communicate your wishes to your health care agent. I’ve had conversations with clients who wanted to name their children as their health care agents but were reticent to have candid discussions about the full extent of their medical problems or did not want to have a difficult conversation about death. At the same time, there are some adult children  who simply cannot stand the thought of having to talk to their parents about the parents’ eventual demise.

But at the same time, even when you communicate with your primary care providers (here, the hospice nurse), it doesn’t mean that those wishes will be passed on to other doctors and hospitals. There is a new tool in Massachusetts called MOLST (Medical Orders for Life-Sustaining Treatment) which promises to help. Unlike a health care proxy, which is a legal document, a MOLST is supposed to be entered into the medical record of a patient facing late-stage illness. The MOLST form contains specific information completed by the treating physician and patient concerning the patient’s desires for how end-of-life care should be managed under different scenarios. MOLST is being gradually rolled out, with the goal of widespread use throughout the state by early 2014.

This sounds like a good idea — as long as the paperwork actually follows the patient in either electronic or paper form. I’m not convinced that will happen if there is more than one hospital chain in the area like there is in the Boston area. I’ll be interested to see how MOLST pans out.

Massachusetts fails to support home care for frail seniors — this is a suprise?

According to a study from the AARP, Massachusetts ranks 40th out of all the states in funds expended to support low-income frail elders in their own homes instead of being placed in nursing homes. According to today’s Boston Globe, “if Massachusetts improved its performance to the level of the highest performing state, Minnesota, at least 3,945 nursing home residents with minimum health care needs would instead be able to receive care in their communities.” At the same time, Massachusetts ranks the sixth most expensive place in the country for the cost of privately-paid skilled nursing care.

Although the Patrick administration says that it wants to work towards keeping more elders in the community, MassHealth is openly hostile to allowing parents to pay their children for care, and there is precious little support offered to family caregivers. The bill I testified about last May to give elders the clear legal right to pay their children remains stuck in committee. Further, the state makes it unnecessarily costly to deliver many routine health care services that would allow elders to stay home. Unlike the states that scored the highest for providing home care, Massachusetts law forces families to either hire a registered nurse to change a feeding tube or give a routine injection (like insulin) or do the job themselves, instead of hiring less expensive trained home health aides as is done in states with the highest percentage of frail elders at home.

Unless the public pressures both the Patrick administration and the legislature to improve the delivery and accessibility of community-based care, movement towards such services will remain painfully slow.