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Understanding Home Care Options

Last week, Karen Kaslow shared come excellent suggestions from local home care agencies about how to have a positive home care experience. This article intends to build on what was reported last week. In case you missed that article, you can find it here in the collection of previous articles on Keystone Elder Law’s website:

The old adage that “you get what you pay for” certainly applies when comparing homecare registries, homecare agencies and home healthcare providers. Registries are less expensive than agencies because registries do not offer the same level of supervision of home care aides as do agencies. Home healthcare agencies are the most expensive because they employ skilled persons who may have a nursing or therapy license.

When a registry provides a home care aide to a client, the aide serves as an independent contractor to the client. Because homecare workers are employees of agencies, the probability is much higher that a homecare worker will either show up as expected, or an acceptable substitute will be provided by the agency. As an employer, the agency has the leverage and authority to communicate a client’s expectations to the homecare aide, and may reassign or discipline the aide when appropriate.

Unlike the agency which functions as the homecare aide’s employer, the registry does not withhold Social Security tax or income tax from the caregiver’s compensation, which is paid directly by the client to the homecare aide.   An hourly fee is also paid to the registry as a finder’s fee. A registry disclaims responsibility or liability for injury to or damage caused by the homecare worker it refers.

Whether the homecare worker is provided by a registry or an agency, state regulations (28 Pa. Code Chapter 611) require that the registry or agency have a competency examination or a training program which includes: the independent living philosophy; instrumental activities of daily living; recognizing changes in the consumer that need to be addressed; basic infection control; handling of emergencies; recognizing and reporting abuse or neglect; and dealing with difficult behaviors.

If the homecare aide is providing personal care, additional competency examination or training must address the following: bathing, shaving, grooming and dressing; hair, skin and mouth care; assistance with ambulation and transferring; meal preparation and feeding; toileting; and assistance with self-administered medications.

While the Commonwealth’s regulations are impressive superficially, a consumer would be unwise to rely solely upon them. For example, it would be possible legally for a homecare worker to be referred to a client before the background check has been completed. Many agencies are scrutinized by their franchisor whose standards of practice in some cases exceed the Commonwealth’s minimum requirements.

Generally, neither homecare agencies nor registries provide any medical services with unskilled and unlicensed homecare aides, who are referred to by the Commonwealth’s regulations as “direct care workers.”  As a special exemption from licensing regulations, the Commonwealth issued policy guidance in February 2017 which enables home care agencies and registries to use non-licensed homecare aides “to assist individuals with disabilities with activities of daily living that could be performed independently but for their disability.”   Permitted activities and services include assistance with bowel and bladder routines, assistance with medication, ostomy care, clean intermittent catheterization, assistance with skin care, and wound care.

This special policy to permit a lower-cost homecare aide to serve a person with a disability applies only if: that individual or a health care agent understands and assumes responsibility; the activity or service provided is of a nature that the individual would be able to perform independently but for his or her disability; the individual’s service plan documents that the individual has a need for the service to facilitate the ability to live independently; the individual has a current order from a health care practitioner that authorizes the registry or agency to provide the nonskilled service/activity; and that the homecare aide has received training and demonstrated competency to the registry or agency in any specialized care activities/services. .

When our clients elect to hire a caregiver as an independent contractor instead of using an agency, we advise them to contact their insurance agent to make sure that their coverage is adequate for the event of an injury suffered by the homecare aide. This likely will require an umbrella liability policy.   Although we do not prepare federal income tax returns or give complete tax advice, we also remind our clients that they have a legal duty to file a 1099 form with the IRS if they pay a homecare worker more than $600 in the tax year.

Many people are not aware of the differences between registries and agencies. I first became aware of the issues years ago when my mother’s accountant explained that, since my mother had not filed a 1099, she should not claim a Schedule A medical deduction for funds paid to the homecare aide.   Upon discovering the issue, my mother declined to issue the 1099 since it would have created an unexpected tax burden for the homecare aide who had spent all her income on basic living expenses.

Similar issues can exist when registries are not used. Many of our clients use family caregiver agreements to document the direct employment of family members, friends or neighbors so that hiring such a person in an off-the-books arrangement as an independent contractor does not cause problems with a future application for government assistance to pay for long-term care.

As an organization that is concerned with helping our clients to get the best possible care and to avoid foreseeable risks, we generally advise our clients that it is better to get a homecare aide from an agency than from a registry.   However, since the total hourly cost paid by a client is lower for registry help than agency help, and caregivers can often earn a higher hourly wage as an independent contractor than as an employee, there are circumstances when the economic motivations of the client and homecare aide result in the use of a registry.   Consumers who struggle to afford homecare, and who are prepared for the extra management responsibilities and liabilities that accompany use of a registry instead of an agency may consider a registry to be an acceptable legal option that is better than not getting any homecare at all.