Government Watchdogs Increasingly Targeting Home Care Agencies

The next year will be a big one for home care. There will be increased opportunities for agencies with a larger national spotlight shone on them. 

Meanwhile, there are both legal threats and advocacy efforts that should be top of everyone’s mind, Home Care Association of America (HCAOA) CEO Vicki Hoak said during Home Care Pulse’s Growth Summit Monday.

“This is an election year,” Hoak said. “Why is this important? It’s important because this is the time that we, as an industry, need to reach out to our respective lawmakers to talk about home care, to tell the story about home care and its impact on their constituents.”

Lawmakers could make an immediate impact in Washington, D.C, by passing at least a part of the embattled Build Back Better plan – the part that would give $150 billion in funding to home- and community-based services.

But Build Back Better’s path is now outside of the home care industry’s control. What is more in its power, however, is standardizing the industry.  

Right now, regulation and standardization varies greatly from state to state. Hoak has argued in the past that this could take value away from the industry as a whole.

“Our home care industry does not have national standards, … and we’re going to have to prove the value of delivering personal care into people’s homes,” Hoak said.

Unionization efforts

California is likely to make it a lot easier for home care workers to unionize in the state with Assembly Bill 2455.

The bill would disclose the personal information – name, address and phone number, for instance – of home care workers. As part of the bill, there’s also a requirement that agencies would need to forward that information to the unions to help them organize.

HCAOA filed litigation over that stipulation, but failed. Still, workers are free to opt out and not have their personal information shared.

“The good news is that workers can opt out,” Hoak said. “But they need to understand that they do have that ability to opt out, meaning that they can say, ‘I don’t want my private information shared.’”

Moving forward, there is some concern among industry advocates that this type of legislation could take on a nationwide scale. While not enough momentum has been generated there yet, Hoak urged operators to remain “vigilant.”

Legal threats

The U.S. Department of Justice (DOJ) announced last month that four home care operators in Portland, Maine, were indicted on counts of wage fixing and labor market allocation charges.

But what was more noteworthy about the announcement was the color that came with it.

“This indictment is the first in this ongoing investigation into wage fixing and worker allocation schemes in the [personal care services] industry,” the release read.

The DOJ, the Federal Trade Commission (FTC) and the U.S. Department of Labor (DOL) have all increased their targeting of the home care industry, Angelo Spinola, the co-chair of the home health and home care industry group at the law firm Polsinelli, also said at the Growth Summit. 

“We’ve seen the FTC and the DOJ kind of pair together,” Spinola said. “There’s a focus right now on restraint of trade, effectively – holding down caregiver wages and caregiver movement. There’s a focus on non-competes and any kind of collaboration between agencies saying, ‘Hey, you don’t hire my employees; I won’t hire yours,’ or agreeing to keep pay rates the same.”

On the DOL side, enforcement against home care agencies has been ratcheted up by the new administration.

Part of the reason for that could be due to the appointment of David Weil, the administrator of the wage and hour division of the DOL during the Obama years and the Biden administration’s appointee. Weil has not been confirmed yet, however.

“I think that was a little bit of a surprise for some; he’s a very controversial nominee because of some of his positions – particularly around joint employment and independent contracting,” Spinola said. “So I think that’s if he does become affirmed, it will be a significant issue for the franchise systems on the joint employment front, and certainly the consumer-directed models on the independent-contracting front.”