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Important Ruling on Homecare Wages

Last week a Federal Appellate Court issued a decision that would guarantee minimum wage and overtime protections to home health care workers. So far the decision has received little attention, but if it stands, it is hard to imagine a decision that would have more dramatic impact on the care being provided to frail older adults and persons with disabilities. Read the decision here.

The practice of paying home care workers less than minimum wage goes back to a 1974 law exempting domestic homecare workers from minimum wage and overtime requirements. More recently, the Department of Labor issued rules that applied these wage protections to homecare workers. In this case, the Court decided that the labor department rules are not contrary to the existing law.

The decision would take effect January 1, 2016. However legal challenges are likely to delay that implementation.

Michigan is one of nine states opposing the Department of Labor rules. These States are understandably concerned with the impact on Medicaid budgets, as Medicaid home care services are largely provided by caregivers receiving less than minimum wage.

This issue that has been coming to a head for a long time, and raises many important considerations about how we, as a society, value elders. Direct caregivers for older adults are among the most difficult, demanding and yet poorly compensated jobs in America. The people who care for our elders are not respected, and as a result, the quality of care our elders receive is compromised. There is no doubt that low wages are a main reason that caregivers are hard to find, hard to keep, and often come with little training and questionable backgrounds. This is true with respect to in-home caregivers, as well as institutional caregivers where wage protections apply but where these jobs are nonetheless low wage and largely without benefits. Care-giving for the aged is a huge industry now, and will only increase with time. While it would be Pollyannaish to disregard real concerns about affordability and funding, particularly services paid by Medicaid, the first step in creating a competent workforce is to elevate the profession of care-giving, and the only way to do that is to provide benefits and competitive compensation.


Only in Ann Arbor?

The first time I met my client was early one morning at the Starbucks on Main St. in Ann Arbor. He had flown in the night before, and I had driven down that morning from East Lansing. The Starbucks is a couple blocks from the Courthouse where we had a hearing about his mother, who is the subject of the case.

Waiting there for my client to arrive, I felt like I was from another planet; dressed in a white shirt, jacket and tie; sitting among all these Ann Arborites in their carefully calculated attire – calculated to look like “oh I just threw this on.” I was goggled at a little, but treated with respect and smiled upon. They felt safe here. And I thought, many of these people in another life had lived in the world I came from, and most of them had certainly come from homes where their parents dressed as I dressed. I was not so much a threat as a novelty.

Anyhow my client’s mother is severely demented and lives in Ann Arbor. My client, her only child, lives in another state. She was a fiercely independent woman, but as she has declined, he has become more involved. The main problem has arisen as a result of a group of “friends” – some old, some new. These friends have taken it upon themselves to “protect” his mother’s integrity – as they see it. Whether they have other designs is an issue, but not in this post.

These friends have surrounded this woman and are actively putting up blockades to her family’s efforts to protect her, and to exercise the powers granted to them by her estate planning documents, particularly the medical and financial power of attorneys. They believe they are speaking for this demented woman and protecting her independence and integrity.

The problem is that they don’t get it. They don’t see where the disease is going. They have seen popular portrayals of dementia in films, and have done on-line research in the kinds of places they (Ann Arborites) would go to find information consistent with their world view. They have explored “alternative medicine” treatment options, one even claims to have a Native American insight, and have concluded that she has a 50% chance of beating this disease. In other words, they are, at best, well-meaning but woefully misled meddlers; preventing the family from taking the steps that need to be taken to secure a comfortable future as this wonderful woman goes down the troubling path that her dementia is inevitably going to lead her. In a year or two, when this woman doesn’t know who these friends are and can’t take care of her basic needs; these people will be more sophisticated on the topic of age-related cognitive decline, but it will be too late – and they will be gone. The opportunity to help this woman transition to an environment in which her quality of life is preserved for the long term is now. And we are wasting precious time on this pointless litigation.

I also can’t help but think how outraged these people would be if someone from the other side of the political spectrum were to decide that they would cure an aging parent with prayer. But they can’t see that they are just as confused and misled.

I don’t mean to offend my friends from AA – or maybe I do – just a little. I suppose this type of thing could happen anywhere. People everywhere seem to be becoming aware of age-related cognitive decline, but the level of sophistication among lay people is worrisome. In part I attribute these misconceptions to the popular media portrayals of this horrible disease (an old woman sitting happily in a chair, looking delightful, and waiting to have someone read to her – really?). But, it seemed to me, that the package of issues in this case has a particularly unique Ann Arbor bent.


LTCI Partnership Update

With respect to the status of the long term care insurance partnership program, which has been the subject of at least one prior post (see below); in a conversation with those working on this issue in state government, I was able to glean the following information:

• This is a priority of the Speaker of the House, Rep. Kevin Cotter.
• The prior enabling legislation has been deemed incomplete, and it has been determined that additional legislation is required before the sale of partnership policies can occur in Michigan.  New legislation is expected to be introduced this week.
• They are looking at passage in the House as early as September.  The Senate will presumably follow, although the time frame for Senate passage will be at the discretion of the leadership of that body.
• The legislation is permissive in nature, meaning it will not include the “nuts and bolts” of how the program will work.
• Once law is in place, the Department of Health and Human Services and Department of Insurance and Financial Regulation develop policy which will provide the details in terms of how the program actually works.
• There are insurance companies interested in writing such policies in Michigan.