In the News

DOL Issues Final Rule on Independent Contractors, Effective March 11

SESCO Management Consultants

The U.S. Department of Labor (DOL) has issued a final rule to clarify who is an independent contractor under the Fair Labor Standards Act (FLSA).

The final rule also rescinds a 2021 rule in which two core factors—control over the work and opportunity for profit or loss—carried greater weight in determining the status of independent contractors. The 2021 rule, which is still in effect, made it easier for employers to classify workers as independent contractors, rather than as employees.

The final rule will take effect on March 11, 2024.

The final rule returns to a more employee-friendly standard. Under the final rule, employers would use a totality-of-the-circumstances analysis, in which all of the factors do not have a predetermined weight. The six factors the DOL would look at are:

Opportunity for profit or loss. If a worker can set or negotiate his pay, accept or decline jobs, choose the order or time of performance, engage in marketing to expand the business, and hire others, purchase materials or otherwise invest in the business, the worker is more likely to be an independent contractor. However, deciding to do more work or accept more jobs is not indicative of contractor status. It is unclear how the ability to "accept or decline jobs" indicates contractor status, while the decision to "take more jobs" does not.

Investments by the worker and the employer. Investments that are "capital or entrepreneurial" in nature, such as those increasing the worker's ability to do different types or more work, reducing costs or extending market reach are indicative of contractor status. However, investing in tools to do the job indicates employee status. It is not clear how this factor would be applied in jobs that do not require any significant investment beyond a computer and internet connection. This factor also embraces the idea that the worker's level of investment should be compared to the business' investments. The utility of the relative-comparison factor is at best unclear and at worst illogical, as nearly every business will have invested more overall than any individual worker, and it would change the nature of the employment relationship based not on the worker's activities or the work done, but simply on the size of the business engaging the worker.

Degree of permanence of the work relationship. When the working relationship is indefinite or continuous, it indicates employee status. When the work is definite in duration, nonexclusive, project-based, or sporadic "based on" the worker providing services to other businesses, it is indicative of contractor status. When the work is project-based or sporadic for some other reason (such as the nature of the business), then it does not indicate contractor status.

Nature and degree of control. This factor looks at various indicia of control over the work and the economic aspects of the relationship. Importantly, control that is merely reserved, but not exercised, still counts as "control." Also notable is the DOL's statement that control exercised to ensure compliance with "legal obligations, safety standards, or contractual or customer service standards may be indicative of control." Prohibiting a subcontractor from engaging in unlawful discrimination, requiring it to follow safety rules or flowing down compliance clauses, would therefore appear to undermine contractor status.

Extent to which the work performed is an integral part of the employer's business. This factor weighs in favor of employee status when the work is "critical, necessary, or central to the employer's principal business." It is unclear what role a contractor could play that would not be "critical, necessary, or central to the employer's business." For instance, external accounting and marketing functions, both historically areas for independent contractors, would seem to be both "critical" and "necessary."

Skill and initiative. This factor looks at whether the worker uses "specialized skills" in performing the work, and whether those skills "contribute to business-like initiative." Being highly skilled in the substance of a particular field (such as engineering, journalism, or hospitality) does not seem to be the kind of "skill" contemplated. Rather, skill in running an independent business is what matters.

The DOL then includes a catch-all provision stating that additional factors may be relevant "if the factors in some way indicate whether the worker is in business for themself, as opposed to being economically dependent on the employer for work."

[Department of Labor’s updated Independent Contractor test As the March 11 effective date approaches, the DOL has issued FAQs offering guidance]

If employers have any questions or concerns, we recommend they contact SESCO Management Services to ensure compliance. For assistance, contact them at 423-764-4127 or by email at [email protected]


Report: Home Health Spending in October Continued to Outpace Other Healthcare Segments

McKnight’s Home Care | By Adam Healy
Year-over-year healthcare spending was fastest within the home health sector for the third straight month, according to a Health Sector Economic Indicators brief for October by nonprofit research and consulting firm Altarum.
Healthcare spending overall grew 6% year over year during October 2023, representing 17.4% of the national gross domestic product, according to the report. At the same time, consumers’ utilization of healthcare services has continued to outpace the price of those services. The Health Care Price Index estimated a 2.9% year-over-year increase in November, while utilization grew by 4.8%
Home health and personal care again dominated spending growth. October saw a 2.9% rise in personal care spending, driven by utilization rates rather than price increases. The fastest-growing category was home healthcare, which saw a 13.5% increase year-over-year. Prices for home health services were also among the fastest-growing at a rate of 4.3%.
The healthcare industry overall added 76,800 jobs in November, which tied July 2023 for the most jobs added in a month compared to the previous year. This constituted roughly 35% of all the jobs added to the United States economy during the month, which added just under 199,000. Still, economywide job growth in November — 199,000 — fell behind the 12-month average of 232,600. Unemployment dropped slightly to 3.7%.
Nursing and residential care facilities brought in the most new workers, with 17,300 jobs added in November. Nursing homes followed with 5,700 new jobs…

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IRS Issues Standard Mileage Rates for 2024

SESCO Management Consultants

  • The Internal Revenue Service (IRS) has released the optional standard mileage rates for 2024.
  • The standard mileage rates for 2024 are: 67 cents per mile for business uses; 21 cents per mile for medical uses; and 14 cents per mile for charitable uses.
  • FAVR allowance for 2024. For purposes of the fixed and variable rate (FAVR) allowance, the maximum standard automobile cost for vehicles places in service after 2023 is $62,000. Employers can use a FAVR allowance to reimburse employees who use their own vehicles for the employer’s business.

Home Health Agencies Grapple With ‘Acuity Creep’ As Patient Needs Become More Complex

Home Health Care News | By Patrick Filbin 

In recent years, due to factors like the pandemic and the reinvention of hospitals, home health agencies are having to take care of much more complicated patients.

As the demand for home-based care continues to rise, so does the need for more intensive care plans as patients continue to be sicker and more complex.

Home health agencies are feeling this “acuity creep,” and they’re adjusting. But at times, it’s hard to keep up.
“When I’m talking about acuity creep, I’m thinking about how much need do the patients in our care models require?” Michael Johnson, president of home health and hospice at Bayada Home Health Care, said. “It’s not just medical needs, either — there’s a social need as well. We’ve seen a definite increase in the needs of our patients.”

The Moorestown, New Jersey-based Bayada is one of the largest home health providers in the country. It has over 360 locations across 23 states and six other countries.
In order to find out if the acuity creep had affected Bayada, Johnson recently dug through the last four years of PDGM data for patient diagnoses and found a noticeable decrease in categories like musculoskeletal rehab and an increase of patients who needed neuro rehab, cardiac and complex behavioral health.

The last three categories can be filed under “more need,” Johnson said. With the need for intense care comes the need for more nurses, home health aides and other caregivers.
“When they’re sicker — as we’ve seen it — we need nursing care for the same person,” Johnson said. “In the case where there’s a nursing shortage, that becomes a bit of a crunch, so from a staffing perspective, that’s been a challenge. When I think about need, I think about workforce.”

Eric Gommel — chief strategy officer at Virginia Health Services — is also focused on workforce development due to this acuity creep.

Virginia Health Services is a provider of home health, palliative and hospice care, and also offers senior housing and other nursing services.

The company has invested heavily in apprentice programs and career ladder initiatives as a way to combat the acuity creep.
“They’re the primary people taking care of our seniors,” Gommel said. “It’s the sad reality of our society that we expect the most out of our children and these caregivers – and we pay them the least.”

Many of the issues that arise when trying to take care of more complex patients, Gommel has found, are in the preparation and education of staff members…

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Panel Considers Potential Changes to Home Health Model

American Hospital Association
The Centers for Medicare & Medicaid Services Dec. 29 released a report on the Expanded Home Health Value-Based Purchasing Model that summarizes input from the first two meetings of a technical advisory panel considering potential refinements to the model’s methodology, measures and approach to health equity. Launched in 2022, the expanded model includes Medicare-certified home health agencies in all 50 states and in U.S. territories. The model’s measure set currently uses data already reported by HHAs through the Home Health Quality Reporting Program or Medicare claims and Home Health Care Consumer Assessment of Healthcare Providers and Systems surveys. 

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