DOL Targets Home Care with Proposed Independent Contractor Rule

McKnight’s Home Care | By Diane Eastabrook
 
Home care agencies beware: The Department of Labor is poised to release a proposed rule today that will make it easier for the department to find that caregivers have been misclassified as independent contractors, rather than employees.
 
Labor Secretary Marty Walsh said the proposed rule will provide better guidance to employers and help them avoid misclassifying employees. 
 
“While independent contractors have an important role in our economy, we have seen in many cases that employers misclassify their employees as independent contractors, particularly among our nation’s most vulnerable workers,” Walsh said in a statement. “Misclassification deprives workers of their federal labor protections, including their right to be paid their full, legally earned wages. The Department of Labor remains committed to addressing the issue of misclassification.”
 
In a statement, the DOL singled out home care as one of nearly a dozen industries where worker misclassification is a problem. The DOL will focus on whether a worker is economically dependent upon the entity sourcing the client for work or if the worker is in, in fact, in business for themselves, Polsinelli Law, which represents home care providers, said. The current test, which has been in effect since early last year, analyzes five factors but places emphasis on two factors: the nature and degree of control over work and the worker’s opportunity to profit or lose money based on personal initiative or investment.
 
“The new proposed rule will focus on the ‘economic reality’ of the worker’s situation, ultimately asking: Are they economically dependent upon the registry/entity sourcing the client for work (and therefore an employee) or are they in business for themselves (and therefore an independent contractor),” the law firm continued in a recent email alert. 
 
Polsinelli said the proposed rule will also focus on whether the worker is integral to a firm’s business. For instance, if the business is matching a caregiver with a client, then the caregiver is integral to that business and should be classified as an employee.

The Notice is available here. 

Comments on the proposed rule are due on or before November 28, 2022.  As reported by NAHC, if the rule is finalied as written, the impact on the home-based care industry could be significant.

Renewal of Public Health Emergency Determination

On October 13, 2022, Secretary Xavier Becerra, Secretary of Health and Human Services, renewed the PHE for COVID-19. The renewal is for 90 days, through January 11, 2023. The renewal states:

"As a result of the continued consequences of the Coronavirus Disease 2019 pandemic, on this date and after consultation with public health officials as necessary, I, Xavier Becerra, Secretary of Health and Human Services, pursuant to the authority vested in me under section 319 of the Public Health Service Act, do hereby renew, effective October 13, 2022, the January 31, 2020, determination by former Secretary Alex M. Azar II, that he previously renewed on April 21, 2020, July 23, 2020, October 2, 2020, and January 7, 2021, and that I renewed on April 15, 2021, July 19, 2021, October 15, 2021, January 14, 2022, April 12, 2022, and July 15, 2022, that a public health emergency exists and has existed since January 27, 2020, nationwide."

BPC Recommends Two-Year Extension Of Pandemic-Era Telehealth Policies

Inside Health Policy | By Jessica Karins
  
The Bipartisan Policy Center has released a wide-ranging slate of recommendations for telehealth policy after the COVID-19 public health emergency, including calling for a two-year extension of most telehealth flexibilities, which the group says would offer time for policymakers to further study the most-effective approaches to virtual care.
 
The recommendation could boost efforts by stakeholders to convince the Senate to pass by year’s end the two-year telehealth extension bill that cleared the House.
 
But BPC also calls for Congress to require that HHS and Congress’ Medicare payment advisers study hot-button issues before permanently expanding telehealth.
 
Researchers should use the time to study the benefits of hybrid care and what specialties and conditions it is most effective for, asses the value of audio-only care, and consider how telehealth flexibilities can fit into value-based care models, the report says.
 
In the Oct. 11 report titled “The Future of Telehealth After COVID-19: New Opportunities and Challenges,” the think tank issues numerous recommendations for how policymakers can preserve the benefits of telehealth after the end of the PHE.
 
“For starters, Congress and the Biden administration should extend most of the telehealth flexibilities for Medicare beneficiaries for two years after the end of the PHE, and formally evaluate their impact,” BPC wrote.
 
It says a two-year extension of flexibilities to further study their impact and efficacy would maintain patients’ access to care while minimizing risks.

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The Latest on Viruses

National Institute for Health Care Management (NIHCM)

As COVID-19 hospitalizations are declining, many hospitals are updating the traditional hospital design model to better accommodate the next pandemic. Some familiar viruses, such as influenza, have returned in unexpected ways while other viruses, including monkeypox and enterovirus, have become more prevalent. 

• Influenza: With COVID-19 precautions continuing to weaken and fewer individuals immunized against influenza, health officials are warning that this fall and winter may be an exceptionally severe flu season and that cases may begin to rise earlier than usual. The projected rise in flu and COVID-19 cases this winter could result in the long-feared "twindemic."

• Poliovirus: The US was recently designated as a country where circulating vaccine-derived poliovirus has been reported, joining a list with 30 other outbreak countries. 

• Monkeypox Cases: The US reported almost two-fifths of the world’s monkeypox cases. While new cases and serious complications are still occurring, transmission in the US appears to be slowing down. The CDC recommends that the monkeypox antiviral be reserved only for people at high risk for severe disease.

• Perception of Monkeypox: Awareness of monkeypox surged over the summer in the US and public health experts continue to warn about stigmatizing monkeypox messaging as was the case during the HIV/AIDS epidemic. Increased awareness of monkeypox has also been accompanied by increased scrutiny for many individuals with skin conditions. For those that have contracted the lesion-causing virus, it continues to impact both physical and mental health.

• EV-D68 in Children: In September, the CDC issued a health advisory about the nationwide increase in pediatric hospitalizations with severe respiratory illness who also tested positive for rhinovirus or enterovirus EV-D68. In rare cases, this virus can cause polio-like symptoms in children.