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(From Lawyers Weekly
- June 3, 2002) Attorneys are trained problem-solvers, but their training does not necessarily equip them to solve all the problems they will confront. Consider this increasingly familiar scenario. Mr. M, who lives alone in Boston, has suffered a slight stroke. His closest relatives are cousins who reside in Kansas. Your law firm has represented Mr. M for several years and you have his power of attorney. So when it is time to think about the at-home care Mr. M will need after his discharge from the hospital, the hospital social worker asks you to make the arrangements. You've probably gotten a call, or several calls, like this already. If you haven't, the odds are you will at some point in the future. The elderly represent the fastest growing segment of the U.S. population, and that trend will accelerate as the baby boom generation hurtles past middle age. The first baby boomers will turn 65 by the end of this decade; by 2030, seniors will represent 27 percent of the population. There will be millions of individuals like Mr. M, and attorneys will be asked to make, or help make, critical decisions about their care. This is not an area in which most attorneys have expertise. Confronted with the need to compare the services offered by competing agencies or to assess the quality of the care they provide, would you know what questions to ask or what red flags to recognize? The following discussion can't be all-inclusive, but it can highlight the major issues attorneys should consider in evaluating and selecting home health care services for their clients.
The state Division of Occupational Safety (Department of Labor) has ruled that home health aides must receive the minimum wage and overtime compensation at time-and-a half for all hours worked in excess of 40 per week. In response to that determination, some agencies have restructured their operation, making home health care workers their employees rather than pretending that they are independent contractors. However, all agencies have not accepted that responsibility, and those agencies often do not always inform their clients and prospective clients of the obligation to pay aides in accordance with the state wage and hour requirements. This creates significant potential legal liability for clients, who innocently pay caregivers less than state law requires. Home health aides are considered to be an employee of someone — either the agency or the client or both. Apart from overtime and minimum wage, an employer is responsible for Social Security and unemployment taxes, as well as workers' compensation insurance and other insurance. Obviously, it is better for the client — and for the attorney handling the client's financial affairs — if the agency chosen to provide care also assumes these legal responsibilities.
Scrutinize the agency's cost structure carefully. It is not just that the lowest-priced agencies may not offer the best services; their prices may also fail to include overtime compensation, or other legal or requirements, and may even fail to cover the state's minimum wage. As you evaluate the cost of home health care, you will find that hiring an individual directly can be significantly less expensive than working with an agency. But the lower costs are more than offset by the potential risks and problems involved. Among other concerns: * Your client (or you, on you client's behalf) assumes responsibility for many of the administrative responsibilities the agency should handle, such as payment of federal and state taxes, compliance with labor and immigration laws, and payment of workers' compensation insurance. * You lose the professional oversight an agency provides for the caregivers. The risks of theft, potential abuse and neglect may be greater with a direct hire than with caregivers an agency screens and supervises.
The key to a successful home health arrangement is a good match between the client and the caregiver. Ask about the training and backgrounds of the caregivers and of the case managers who supervise them. You want both to have experience working with elder patients and you want the caregivers, at a minimum, to have Home Health Aide certificates. You also want to be sure they are in good health. Ask if the agency requires annual physicals, including an annual tuberculosis X-ray. Staff retention is another important gauge in this selection process. A high turnover rate usually indicates unfavorable working conditions — too many hours per week for aides and too many case assignments for case managers. Ask specifically about the workload for case managers. Burnout can be a serious problem in the home health care industry, and it can seriously undermine the quality of the services an agency provides. How many cases do case mangers monitor, on average? How do they evaluate caregivers? What steps does the agency take to support its case managers and to help its caregivers improve? Assess the turnover rate for clients as well as staff. A low client retention rate typically indicates dissatisfaction with the quality or the consistency of the care.
The in-home assessment should consist of an interview with the client in the client's home, designed to identify each of the medical, emotional, sociological, psychological and financial issues relevant to the client's care and well-being. An agency may be able to collect some of this information by phone, but not nearly enough of it. A thorough evaluation should focus on: * The logistics of the home — where are the kitchen, bathrooms, bedrooms, etc. located in relation to each other. How does the client get around? * Is there safety equipment in place, or should equipment be installed? * What services does the client need? Will a few hours a day be sufficient? Round-the-clock services? Live-in care? * What kind of food does the client like? Are there special dietary needs, such as low cholesterol, salt-free, kosher? Does the client cook some or all meals? * What are the client's interests? Are they music, gardening, sports? * How does the client feel about receiving assistance? Is he independent, needy, outgoing or a private person? The agency should develop a detailed plan of action and job description based on the assessment. You can use these documents to compare agencies and to evaluate the performance of the agency you select. The agency should use the evaluation, in part, to assign an appropriate caregiver for the client. Making the best "match" should be a priority for the agency and for you as agent for your client. Find out what criteria the agency uses to make the assignment and how they handle bad matches. Also, ask about the agency's back-up plans to handle the inevitable occasions when the assigned caregiver is unable to report for the next shift. How will the agency respond when an aide, who is supposed to cover the weekend shift, beginning at 5 p.m. Friday, calls at 4 to say he is ill and unable to work?
* How long has the agency been in business? * Is the agency registered as a corporation? * Is the agency licensed by the state? * What is its reputation with local hospitals, rehab centers, visiting nurse associations, etc? * What is the background of the principals? (A social work or health and human services background tells you they have a vested interest in the field and are well trained.) * Does the agency list its credentials in a brochure or in their other promotional literature? Ask any agency you consider to provide references, and check them thoroughly. If an agency can't or won't provide references, skip immediately to the next company on your list.
Elder care is one of the biggest expenses of our lifetime. We shop carefully for a car, house and college for our children. We should spend at least as much time choosing care for our latter years. Karen Gould is president of Golden Care, Inc., a private home health care agency in Boston. ©
2002 Lawyers Weekly Inc., All Rights Reserved.
3) Guiding A Client Through
The Home Health Care Maze
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