Emerging Legal Trends in Home Care & Hospice, Part 1: Patient Acceptance & Discharge

Thursday, May 6, 2021 | 1:00-2:00pm Eastern REGISTER FOR THE WEBINAR SERIES REGISTER FOR THIS WEBINAR More information about the series here. The National Association for Home Care & Hospice is pleased to announce an important new webinar series, Emerging Legal Trends in Home Care & Hospice, which will cover the most timely and important legal issues…

Emerging Legal Trends in Home Care & Hospice, Part 1: Patient Acceptance & Discharge

The National Association for Home Care & Hospice is pleased to announce an important new webinar series, Emerging Legal Trends in Home Care & Hospice, which will cover the most timely and important legal issues facing the industry today and tomorrow.

The first episode in the series is on Thursday, May 6, 2021 from 1:00-2:00PM Eastern.

Home care and hospice are highly regulated, forcing providers to maintain a strong working knowledge of a bewildering array of legal issues just to stay in business. Fortunately, the National Association for Home Care & Hospice (NAHC) has a solution. This 10-part webinar series offers an in-depth and practical analysis of the key legal topics every home care and hospice executive should understand. Beginning in May 2021 and continuing through December, NAHC will bring together the top experts in the industry to examine the most important topics your business is facing, such as:

  • Patient Acceptance and Discharge (Thursday, May 6, 2021 from 1:00-2:00PM),
  • Fraud and Abuse,
  • HIPAA,
  • Employment Law,
  • Quality of Care Compliance,
  • Mergers and Acquisitions,
  • And much more.

Every part of your organization is impacted by the legal and regulatory regime, that’s why we provide insight and guidance for every part of your organization from clinical to finance to legal. These webinars will help your entire organization stay ahead of the curve.

Home care and hospice has never been under a brighter spotlight than it is right now, from regulators, legislators, and the media. The best way to prepare for this heightened scrutiny is to learn from the best experts in the industry.

Faculty

Bill Dombi, Esq., President, NAHC

Pricing
Individual Webinar: 
$29 for NAHC members | $50 for non-members
10-part Series: 
$199for NAHC members | $350 for non-members

Emerging Legal Trends in Home Care & Hospice, Part 1: Patient Acceptance & Discharge

Thursday, May 6, 2021 | 1:00-2:00pm Eastern REGISTER FOR THE WEBINAR SERIES REGISTER FOR THIS WEBINAR More information about the series here. The National Association for Home Care & Hospice is pleased to announce an important new webinar series, Emerging Legal Trends in Home Care & Hospice, which will cover the most timely and important legal issues…

Littler Ask the Experts: Legal Considerations for Employees Working Remotely

Through a partnership with Littler Mendelson P.C Labor & Employment Law Solutions, we are excited to share the “Ask the Experts” article. Each week, we will feature a new question, from you, our members, related to workplace issues and topics that will be answered from our experts and partners at Littler. 

This week’s question comes directly from a recent advisory board meeting and concerns legal considerations and obligations around telework.

Question: What are the legal considerations for employees who are now working remotely? What is our company responsible for paying for related to the work these employees are performing now out of their home offices?  

Answer by Will Vail 

Employers with employees working remotely should strongly consider creating a policy that addresses all of the potential issues the parties may face.  One big issue is whether an employer must reimburse for expenses relating to working from home.  In some states, like California and Illinois, employers are required to reimburse these expenses.  California’s statute is the most restrictive and has served as a model for others.  It requires employers to reimburse “all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of duties or obedience to the employer’s directions.”  Although the law is not entirely settled, only California courts have held that an employer should reimburse a reasonable percent of the expense for things used to perform the work, even if the employee would have incurred the same expense without having used the item for business (i.e., no incremental cost to employee such as existing home internet or use of personal cell phone that is on an unlimited plan).  The Illinois statute permits employers to set certain guidelines and specifications that may limit reimbursement liability.   

Related question: How can I best track time and attendance for remote workforce employees?  

A Telework Policy defines the essential components of remote timekeeping for non-exempt employees: a specific schedule, requirements for clocking in and out, mandatory tracking for required meal and rest breaks, and a prohibition against working off the clock. The Policy also should make clear that the Company’s broader timekeeping and overtime rules apply; these policies can be evaluated and fine-tuned as needed.  The need to define meal and rest period obligations also will vary from state to state. 

Telework also raises challenges related to compensable travel time.  If non-exempt employees can work from a home office and from an employer’s office, the time spent getting from one location to the other in the course of a day might be transformed from a non-compensable home-to-work commute to a compensable trip from one worksite to another. For this reason, employers should consider directing non-exempt employees to work in only one work location each day or, if developing a specific program involving multiple work sites in a day, work directly with wage and hour counsel to develop programs to address potentially compensable travel time.

Before advancing a robust telework policy, employers should ensure that there is appropriate infrastructure for the logistics of accurate timekeeping: If a timekeeping system is used, are adjustments required so it will function properly remotely? If timesheets are used, how will they be returned by remote employees, and reviewed and approved by managers, and how will revisions be verified by the employee when teleworking? Are there reliable methods for cutting off access to work materials outside scheduled working time, to prevent off-the-clock work by non-exempt employees?

Finally, as with all wage and hour topics, robust training for managers supervising non-exempt employees working remotely is strongly recommended. Out of sight does not translate to out of mind.  Managers can be trained to recognize the potential Company perils brought about by remote-working non-exempt employees, in particular such risks that the managers can possibly prevent – e.g., by not sending emails to non-exempt workers after hours, not reducing time on a timesheet without a clear record of the reason and agreement from the employee, and more.

About Littler

At Littler, we understand that workplace issues can’t wait. With access to more than 1,500 employment attorneys in over 80 offices around the world, our clients don’t have to. We aim to go beyond best practices, creating solutions that help clients navigate a complex business world. With deep experience and resources that are local, everywhere, we are fully focused on your business. With a diverse team of the brightest minds, we foster a culture that celebrates original thinking. And with powerful proprietary technology, we disrupt the status quo – delivering groundbreaking innovation that prepares employers not just for what’s happening today, but for what’s likely to happen tomorrow. For over 75 years, our firm has harnessed these strengths to offer fresh perspectives on each matter we advise, litigate, mediate, and negotiate. Because at Littler, we’re fueled by ingenuity and inspired by you.

About Will Vail, Special Council

William Vail brings a wealth of private practice and in-house experience to every matter he handles. For nearly seven years, he was lead employment counsel two separate divisions of largest post-acute health care provider in the nation (the home health, hospice and community care division and nursing center division). He later was lead employment and litigation counsel for the largest home health and hospice provider in the nation following a corporate reorganization. In addition to a wide variety of employment issues, Will is familiar with False Claims Act, professional liability and general liability matters related to healthcare operations. 

Will is a core member of Littler’s healthcare practice group. He has experience litigating across the United States, providing advice and counsel to both legal and non-legal stakeholders, performing due diligence related to mergers and acquisitions, helping start-ups begin operations in a compliant method, winding down operations, conducting management training, and assisting in the integration of new entities into going concerns. 

William Vail began his legal career in 2004 as a law clerk to a federal judge sitting in the Western District of Virginia. He then transitioned to private practice in Louisville, Kentucky, for a regional full-service firm and later a national labor and employment boutique firm. At Littler, Will is based in Louisville as well as Atlanta. 

*Not licensed to practice law in Georgia

“Littler: Ask the Experts”

Through Private Duty Home Care at NAHC’s partnership with Littler Mendelson P.C Labor & Employment Law Solutions, we are excited to share the “Ask the Experts” Article. Each week, we will feature a new question, from you our members, related to workplace issues and topics that will be answered from our experts and partners at Littler. 

This week’s question comes from one of our Private Duty Home Care members and concerns pay for travel time to assignments.

Question: I just started my own agency and one of my employees, a home care aide, is asking if she is entitled to additional pay for the time it takes her to drive to her client’s homes. Is this something I am required to pay?

Answer by Angelo Spinola

Different states have different rules for travel time, but generally speaking work related travel between client homes within a single day of work must be paid under federal and state law.  Under federal law, the Portal-to-Portal Act eliminates “from working time certain travel and walking time and other similar ‘preliminary’ and ‘postliminary’ activities performed ‘prior’ or  ‘subsequent’  to  the  ‘workday’  that  are  not  made  compensable  by  contract,  custom,  or practice.”  29 C.F.R. § 785.9.  Thus, employers do not typically have to compensate employees under the following two situations: (1) normal home-to-work and work-to-home travel; and (2) other activities considered preliminary and postliminary to an employee’s principal job activities. Id.   As such, home to work, or work to home travel, is not compensable in an ordinary situation. 

 Under federal law, assuming an employee has engaged in no work activities prior to the start of travel, employers generally do not have to count as time worked the time an employee spends “walking, riding, or traveling to and from the actual place of performance of the principal activity or activities, which such employee is employed to perform” either at the beginning or end of the workday.  29 C.F.R. § 785.34.  However, travel time from job site to job site during the course of the work day is considered work time. 29 C.F.R. § 785.38. The United States Department of Labor has advised that, where the travel is not direct from job site to job site, such that the employee is relieved from duty for a period sufficient to engage in purely personal pursuits, only the time necessary to travel directly from the first job site to the second job site is considered compensable travel time.  See United States Department of Labor, Wage and Hour Division, Domestic Service Final Rule Frequently Asked Questions (FAQ), http://www.dol.gov/whd/homecare/faq.htm.  The U.S. DOL’s FAQ materials provide the following example:

Tiffany is a direct care worker who is employed by Handy Home Care Agency. She provides services to two of the agency’s clients, Mr. Jackson, from 9:00am to 11:30am, and Mr. Smith, from 2:00pm to 6:00pm. Tiffany drives to the two different worksites which are 30 minutes apart. She leaves Mr. Jackson’s home at 11:30am and goes to a restaurant for lunch, shops for herself, and then arrives at Mr. Smith’s home at 2:00pm.

Because Tiffany is completely relieved from duty long enough to use the time effectively for her own purposes (i.e., lunch and shopping) not all of the time is hours worked. The 30 minutes required to travel between the two homes is hours worked and, as of January 1, 2015, must be paid by the Handy Home Care Agency even though Tiffany did not travel directly between consumers.

About Littler

At Littler, we understand that workplace issues can’t wait. With access to more than 1,500 employment attorneys in over 80 offices around the world, our clients don’t have to. We aim to go beyond best practices, creating solutions that help clients navigate a complex business world. With deep experience and resources that are local, everywhere, we are fully focused on your business. With a diverse team of the brightest minds, we foster a culture that celebrates original thinking. And with powerful proprietary technology, we disrupt the status quo – delivering groundbreaking innovation that prepares employers not just for what’s happening today, but for what’s likely to happen tomorrow. For over 75 years, our firm has harnessed these strengths to offer fresh perspectives on each matter we advise, litigate, mediate, and negotiate. Because at Littler, we’re fueled by ingenuity and inspired by you.

Angelo Spinola is a Shareholder with Littler Mendelson P.C., and is a lead attorney for the Home Care Practice Group. He represents home care employers across the country in various types of actions brought under the Fair Labor Standards Act and various state wage and hour laws. Appearing on behalf of employers in federal and state courts and administrative tribunals throughout the U.S., Angelo has litigated all types of discrimination cases, including age, disability, race, national origin, sex, harassment and retaliation. Angelo’s experience also includes helping employers respond to wage and hour investigations by the Department of Labor and state agency equivalents, conducting wage and hour practices audits, developing compliance measures that minimize wage and hour exposure, and representing management in grievance arbitrations. Additionally, Angelo assists employers with promoting an issue-free work environment through counseling, training and other preventive strategies. He also conducts training on employment-related issues for management personnel, lawyers and human resources professionals. Angelo received a J.D. from George Washington University Law School.

Successfully Navigate State and Federal Law with this Employment Toolkit

NAHC members receive a huge savings! The National Association for Home Care & Hospice (NAHC) has partnered with Littler, a company with more than 75 years of experience in labor and employment law, to offer our members access to the Littler Home Care Toolkit at a tremendous savings. The Toolkit will provide employers with the…

EEOC Issues Important Guidance on COVID-19 and Key Employment Laws

The Equal Employment Opportunity Commission (EEOC) has provided guidance to employers on their rights and obligations and how they might have changed during the COVID-19 Public Health Emergency. The National Association for Home Care & Hospice (NAHC) believes this information will be extremely useful for home care and hospice organizations and we urge you to…