Three legislative threats to home care in Connecticut

There is an increasing shortage of qualified home care providers in Connecticut, and many home care companies are withdrawing from state-funded programs, or curtailing operations, especially in the area of live-in care, due to financial and regulatory challenges. To make matters worse, at this late date in the Connecticut legislative session, there are at least three problematic bills posing additional threats to home care and the home-care industry, which curiously still appear to be viable possibilities for passage.

Tom Falik.

SB-1051.  This bill purports to be “An Act Strengthening Home Care Services.”  Nothing could be farther from the truth. This bill is an amazingly transparent effort by labor unions to grab personal contact information of all caregivers placed by agencies and registries, in an attempt to unionize caregivers.

Under the bill, agencies and registries would have to quarterly submit to the Department of Consumer Protection (“DCP”) information, including the names, addresses, phone numbers and e-mail addresses of all of their caregivers.  DCP would then make this information available to other home care companies and labor unions.

SB-1051 also imposes an absurd requirement that agencies and registries submit annual cost reports and audited financial statements to DCP, for no particular purpose.

At public hearing, this bill was roundly condemned by all segments of the home care industry and opposed by DCP on budgetary grounds. Nevertheless, on March 21, the Human Services Committee approved this bill.  The subsequent Office of Fiscal Analysis fiscal note for this bill estimated potential costs to the State of $579,101 over the next two years (not to mention the additional cost to the industry), which should be way too expensive, even for union supporters.

This Bill has no redeeming qualities, and should be killed, but is labor union influence over this Legislature so great that it still might pass?

HB-6931. Versions of this Domestic Workers Bill of Rights, supported by numerous religious, labor and workers’ rights groups, have been introduced in the Connecticut legislature several times since 2014.  These bills have always had some much-needed provisions and good intent, but have always included some wrong-headed and/or totally over-reaching provisions, and this year is no exception.

This year’s bill was submitted to, and taken to public hearing by, the Labor and Public Employees Committee, as a one-paragraph bill, without setting forth the problematic provisions contained in previous years’ versions of the bill. The public hearing on this one-paragraph bill attracted 27 supporters and no detractors.  After the public hearing, the real bill, which is very similar to the bills from previous years, was introduced.  This bait-and-switch tactic prevented the public from having a meaningful opportunity to raise obvious objections to this bill.

Many in the home care industry totally oppose this bill, but I would suggest that it could be acceptable, but only if the following three changes were made to the bill:

1. Section 1 of HB-6931, which, among other things, removes the only two remaining federal Fair Labor Standards Act (“FLSA”) overtime exemptions available to CT home care consumers, must be deleted, or revised to retain these FLSA exemptions.

The FLSA “Companionship Exemption” is very narrow, but the FLSA “Live-in Domestic Service Exemption,” is critical to live-in care in Connecticut.  This exemption is the only opportunity for Connecticut individuals and families to obtain reasonably affordable live-in care (unless they rotate three caregivers per week to avoid overtime).  If this overtime exemption is removed, costs to Connecticut families (and state programs for individuals and families) would increase enormously.

While allowing live-in caregivers to earn overtime sounds fair, it is an illusion that would benefit very few caregivers.

Today a seven-day live-in caregiver, being paid minimum wage for 14 hours per day, will earn over $50,000 per year.  When minimum wage goes to $15/hour, this will be over $70,000.  If they also must be paid overtime, this will go to over $90,000 per year for one caregiver.

The obvious problem is that most seniors (and the State of Connecticut in their programs) cannot afford this.

Because so few people could afford this, seven-day live-in assignments would be split among two or three caregivers to minimize overtime.  This is a terrible result for both seniors (who need continuity of care) and caregivers (who would have to live in two or three homes each week to have the same level of employment).

2. Section 5(f) of HB-6931 requires that, (1) a terminated hourly caregiver (after working for 90 days) must receive seven days’ notice of termination (and live-in caregivers, 14 days’ notice), or (2) the caregiver must be paid seven days or 14 days severance, respectively. This is not a reasonable requirement to impose by statute on seniors in Connecticut.
3. Section 5 and succeeding Sections of HB-6931 include various protections for caregivers in the area of privacy, retaliation prevention and enforcement, and CHRO discrimination and harassment. However, Section 5 of the bill imposes these obligations only on Connecticut private-pay consumers and businesses, and exempts State-funded programs for seniors. If State-funded programs are exempted from any of these requirements, that requirement should be eliminated from this bill, and not imposed on private-pay consumers and businesses.

Unless these three changes can be made, the damage done by HB-6931 to Connecticut home care outweighs the benefits, and it should again be defeated.

HB-7164.  Buried deep in the Act Implementing the Governor’s Budget Recommendation for Human Services is a provision making all “covenants not to compete”, related to only the home care industry, void and unenforceable.  This Section 12 of the bill would eliminate the right of a home care company to recover reasonable suffered losses from a client and/or a caregiver that conspire to cheat the home care company that placed the caregiver out of its contractual placement revenue.  There are other bills before the Connecticut Legislature that seriously address covenants not to compete, that are not limited to a single industry, and that do not similarly impede proper business relationships (i.e. HB-6913).  This Section 12 should be removed from this implementer.

It is critical that legislators focus on these three threats to home care in Connecticut, and not allow the damages that they would cause.

Tom Falik is the President of Homecare Registry Solutions LLC.

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