Sunday, June 17, 2007

Home Health Aides: Who Takes Care of Them?

A basic rule of thumb is that supply and demand sets prices. If there's a large supply of something, say, plasma TVs and less demand, prices for plasma TVs go down (check out any electronics store). Conversely, if there's a huge demand for something and smaller supply (gasoline), prices go up. Supply and demand rules cover salaries as well as widgets. Salaries are driven up when the labor market tightens. Salaries go down when there are too many applicants for too few slots.

It seems when poor, minority women are involved, the rules of supply and demand fly out the window. As the population ages, demand for home health aides is exploding. There are an estimated 250,000 home health aides currently employed, mostly by private, for-profit agencies that charge their clients around $25 per hour (or more). The home health aides that work for these agencies earn a median hourly wage of $8.81, generally without benefits like paid vacations and health insurance, Bureau of Labor Statistics, Department of Labor, Occupational Outlook Handbook, 2006-07 Edition

Some backstory: Overall employment of home health aides is the fastest growing occupation as a result of both growing demand for home services for an aging population and efforts to contain costs by moving patients out of hospitals and nusing care facilities as quickly as possible.

Recently the Supreme Court refused to do anything about a 1975 Labor Department regulation that excluded home health aides from basic labor protections like the minimum wage and time-and-a-half for overtime. Evelyn Coke, 73 and in poor health herself, made her argument and there was no dispute about the facts.

Employed for 20 years by the agency Long Island Care at Home, she was often on duty for more than 8 hours a day, including many 24-hour stretches in the homes of elderly people she was assigned to care for. Care included such things as: lifting an elderly person out of bed, taking him to the bath, bathing him, changing his diapers, going shopping and cooking for him, making sure he takes his medicine and turning him over in bed if he's immobilized, and many, many other tasks. Because people are living so long due to better medical care and nutrition, many more get Alzheimer's disease and other dementias, so they require all the care I mentioned before and then some. Alzheimer's patients can be very unpredictable, hostile to the point of physical violence, and often require close 24-hour a day monitoring.

All 9 Supreme Court Justices rejected Ms. Coke's argument the Congress intended to include home health employees in the labor law and to exclude only certain domestic workers, like baby sitters and companions from the elderly who are paid by the families they work for.

The Supremes are strict when the mood strikes them. They ruled that Congress authorized the Labor Department to write the regulation on who was to be covered under the law and that the Labor Department properly did that. Justice Stephen Breyer wrote that, given those circumstances, deferring to the Department's rule "is what the law requires."

"Fair Labor Standards Amendments of 1974 exempted from the minimum wage and maximum hours rule of the Fair Labor Standards Act of 1938 (FLSA) persons "employed in domestic employment to provide companionship services for individuals...unable to care for themselves." 29 U.S.C. Sec.213(a)(15) Under a Labor Department regulation...the exemption includes those "companionship" workers "employed by other than the family or household using their services." 29 C.F.R. Sec.552.109(a)

The fact that the use of home health aides can cut costs flies in the face of powerful forces opposing reregulating home health aides, such as the Bush administration and the Bloomberg administration. They opposed Ms. Coke's claim to overtime pay by arguing that federal labor law protections for home health aide workers would drive up the cost of Medicaid and Medicare which cover many home health care bills.

As The New York Times wrote in their editorial, "Congress and the Caregivers" on 6/15/07, "Refusing to pay employees fairly for the word they do is not an acceptable way to keep costs down."

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