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H.R. 3582, THE FAIR HOME

HEALTH CARE ACT

HEARING

BEFORE THE

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

COMMITTEE ON 

EDUCATION AND LABOR

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

HEARING HELD IN WASHINGTON, DC, OCTOBER 25, 2007

Serial No. 110–69

Printed for the use of the Committee on Education and Labor

(

Available on the Internet: 

http://www.gpoaccess.gov/congress/house/education/index.html 

(II)

COMMITTEE ON EDUCATION AND LABOR 

GEORGE MILLER, California, Chairman

Dale E. Kildee, Michigan, Vice Chairman 

Donald M. Payne, New Jersey 

Robert E. Andrews, New Jersey 

Robert C. ‘‘Bobby’’ Scott, Virginia 

Lynn C. Woolsey, California 

Rube ́n Hinojosa, Texas 

Carolyn McCarthy, New York 

John F. Tierney, Massachusetts 

Dennis J. Kucinich, Ohio 

David Wu, Oregon 

Rush D. Holt, New Jersey 

Susan A. Davis, California 

Danny K. Davis, Illinois 

Rau ́l M. Grijalva, Arizona 

Timothy H. Bishop, New York 

Linda T. Sa ́nchez, California 

John P. Sarbanes, Maryland 

Joe Sestak, Pennsylvania 

David Loebsack, Iowa 

Mazie Hirono, Hawaii 

Jason Altmire, Pennsylvania 

John A. Yarmuth, Kentucky 

Phil Hare, Illinois 

Yvette D. Clarke, New York 

Joe Courtney, Connecticut 

Carol Shea-Porter, New Hampshire 

Howard P. ‘‘Buck’’ McKeon, California, 

Ranking Minority Member 

Thomas E. Petri, Wisconsin 

Peter Hoekstra, Michigan 

Michael N. Castle, Delaware 

Mark E. Souder, Indiana 

Vernon J. Ehlers, Michigan 

Judy Biggert, Illinois 

Todd Russell Platts, Pennsylvania 

Ric Keller, Florida 

Joe Wilson, South Carolina 

John Kline, Minnesota 

Cathy McMorris Rodgers, Washington 

Kenny Marchant, Texas 

Tom Price, Georgia 

Luis G. Fortun ̃ o, Puerto Rico 

Charles W. Boustany, Jr., Louisiana 

Virginia Foxx, North Carolina 

John R. ‘‘Randy’’ Kuhl, Jr., New York 

Rob Bishop, Utah 

David Davis, Tennessee 

Timothy Walberg, Michigan 

Dean Heller, Nevada

Mark Zuckerman, Staff Director 

Vic Klatt, Minority Staff Director 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

LYNN C. WOOLSEY, California, Chairwoman

Donald M. Payne, New Jersey 

Timothy H. Bishop, New York 

Carol Shea-Porter, New Hampshire 

Phil Hare, Illinois 

Joe Wilson, South Carolina, 

Ranking Minority Member 

Tom Price, Georgia 

John Kline, Minnesota 

(III)

C O N T E N T S 

Page

Hearing held on October 25, 2007 .......................................................................... 1

Statement of Members: 

Wilson, Hon. Joe, ranking minority member, Subcommittee on Workforce 

Protections ..................................................................................................... 4

Prepared statement of ............................................................................... 6

Woolsey, Hon. Lynn C., Chairwoman, Subcommittee on Workforce Protections ................................................................................................................ 1

Prepared statement of ............................................................................... 3

Additional submissions: 

Prepared statement of Mike Oxford, executive director, Topeka 

Independent Living Resource Center ............................................ 55

Prepared statement of Laura Reyes, president-elect, United Domestic Workers of America (AFSCME) ......................................... 60

Statement of Witnesses: 

Becker, Craig, associate general counsel, Service Employees International 

Union (SEIU) ................................................................................................. 10

Prepared statement of ............................................................................... 12

Butler, Manuela, home health care worker of District Council 1707, Local 

389, of the American Federation of State, County and Municipal Employees (AFSCME) ........................................................................................ 8

Prepared statement of ............................................................................... 9

Claypool, Henry, policy director, Independence Care System ...................... 46

Prepared statement of ............................................................................... 47

Dombi, William A., vice president for law, on behalf of the National 

Association for Home Care & Hospice, Inc. ................................................ 39

Prepared statement of ............................................................................... 41

Robinson, Alfred B., Jr., Ogletree, Deakins, Nash, Smoak & Stewart ........ 19

Prepared statement of ............................................................................... 20

Seavey, Dorie, director of policy research, Paraprofessional Healthcare 

Institute ......................................................................................................... 22

Prepared statement of ............................................................................... 25

(1)

H.R. 3582, THE FAIR HOME HEALTH CARE ACT 

Thursday, October 25, 2007

U.S. House of Representatives 

Subcommittee on Workforce Protections 

Committee on Education and Labor 

Washington, DC

The subcommittee met, pursuant to call, at 9:35 a.m., in room 

2175, Rayburn House Office Building, Hon. Lynn Woolsey [chairwoman of the subcommittee] presiding. 

Present: Representatives Woolsey, Payne, Bishop of New York, 

Hare, Wilson, Price, and Kline. 

Staff present: Aaron Albright, Press Secretary; Tylease Alli, 

Hearing Clerk; Jordan Barab, Health/Safety Professional; Lynn 

Dondis, Senior Policy Advisor for Subcommittee on Workforce Protections; Jeffrey Hancuff, Staff Assistant, Labor; Robert Borden, 

Minority General Counsel; Rob Gregg, Minority Legislative Assistant; Taylor Hansen, Minority Legislative Assistant; Victor Klatt, 

Minority Staff Director; Alexa Marrero, Minority Communications 

Director; Jim Paretti, Minority Workforce Policy Counsel; Molly 

McLaughlin Salmi, Minority Deputy Director of Workforce Policy; 

Linda Stevens, Minority Chief Clerk/Assistant to the General 

Counsel; and Loren Sweatt, Minority Professional Staff Member. 

Chairwoman WOOLSEY [presiding]. A quorum is present. The 

hearing of the Workforce Protections Subcommittee on H.R. 3582, 

the Fair Home Health Care Act, will come to order. 

Pursuant to Committee Rule 12(a), any member may submit an 

opening statement in writing which will be made part of the permanent record. 

I now recognize myself, followed by Ranking Member Joe Wilson, 

for an opening statement. 

So I thank you all for coming. And, as I said, 9:30 a.m. is kind 

of off step around here, so you will be surprised that other members will come in and go, ‘‘Oh, my goodness, I have missed a halfhour of this.’’

But we are going to have a hearing on H.R. 3582, the Fair Home 

Health Care Act, which provides home health care workers with 

minimum labor protections under the Fair Labor Standards Act. I 

introduced this legislation in response to a recent Supreme Court 

decision, Long Island Care at Home Ltd. v. Evelyn Coke, where the 

Court found that Evelyn Coke was not entitled to the minimum 

protections of FLSA, particularly overtime pay. 

Senator Harkin has introduced the companion bill in the Senate. 

2

Evelyn Coke, who unfortunately could not be with us today, 

worked as a home health care worker for Long Island Care at 

Home, a for-profit home health care agency, for 20 years. Home 

health care was her vocation, and she worked an average of 42 

hours a week caring for the elderly and the disabled. Sometimes 

she was required to work 24-hour shifts. But she was not paid 

overtime during her two decades of work. 

The Supreme Court found that Ms. Coke fell into a narrow exemption created by Congress in 1974. Ironically, when Congress 

created the exemption, it did so in the context of expanding FLSA 

to cover most domestic workers, such as chauffeurs and housekeepers, who previously had no labor protections. 

The Congressional Record from that period shows that Congress 

did not mean to exclude home health care workers, but only those 

workers who provided ad hoc services for the elderly and disabled, 

only for workers who were ‘‘babysitters.’’ So it was a mistake, and 

it needs to be corrected. 

Nonetheless, the Court found that Congress’s intent was not 

clear and that it meant to delegate the details of the exemption to 

the Department of Labor, and it upheld a Department of Labor regulation that exempted caregivers who worked for third parties from 

FLSA protections. 

So I suppose we could argue whether the Supreme Court’s decision was technically correct. But I do know that it was bad policy, 

absolutely, and if it is allowed to stand, it continues the exploitation of a segment of America’s workforce—mostly made up of 

women and minorities—a segment that does really important and 

difficult work and barely makes a living wage. 

Moreover, there is nothing in the decision that acknowledged 

what most of us know, that home health care has changed drastically since 1974, when caregiving was largely provided by family 

and friends. Today, about 2.4 million workers are employed by 

nursing homes, home health care agencies, assisted living and 

other residential facilities. Over 800,000 of these workers provide 

in-home care. 

As the baby boomers age, this need is going to grow hugely. According to one estimate, in the year 2000, 13 million elderly needed 

caregiver services. By 2050, this number will grow to 27 million, 

from 13 million to 27 million. And the disabled population needing 

care is also going to grow during this period from 5 million to 8 

million. 

And I doubt very much that they have taken into consideration 

the returning wounded Iraqi vets when they came up with that 

number. 

So, today, already, there is a shortage of home health care workers. Turnover is very, very high, and nearly one-half of the home 

health care workers leave their jobs each year. So this, in turn, impacts the quality of care for people and, in many cases, disrupts 

their care to the point where they are unable to stay at home. 

And the main culprit is low pay. The average home health care 

worker makes less than $10.00 an hour, about half of what other 

workers earn. More than 20 percent of home health care workers 

actually live in poverty themselves and need public assistance just 

to make ends meet. I mean, that is just unacceptable. And, oftenVerDate 0ct 09 2002 15:13 May 15, 2008 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 G:\DOCS\110TH\WP\110-69\38308.TXT HBUD1 PsN: DICK
3

times, they do not have the work benefits that most of us rely on, 

such as health care, vacation and sick time. 

This work is difficult. It is taxing both physically and emotionally 

and must be honored. 

So I know that there are those who worry that if we pay home 

health care workers a decent wage, the disabled will not be able 

to afford in-home care, and I know that there are others who say 

that Medicaid and Medicare costs will soar, which will ultimately 

mean a cut-back in services for those who need it the most. 

But in some states, such as Michigan and Minnesota, they already pay overtime to home health care workers and, certainly, the 

sky has not fallen in those states. It is working. Those states recognize that it is simply morally reprehensible to exclude hard-working home health care workers from minimum labor protections. 

They also recognize that these protections help to stabilize the 

workforce. 

So H.R. 3582, the Fair Home Health Care Act, providing minimum wage labor protections, will be debated today. We will have 

the hearing. We will ask you questions. 

But I want to make sure everybody knows that this bill does not 

cover occasional caregivers. It does not reach live-in caregivers either because they are already exempted from overtime, but not 

minimum wages. It simply ensures that home health care workers 

are paid what they deserve. 

So I look forward to exploring the issues with you and hearing 

your presentations, and I honor you for being here. 

And I now yield to my ranking member, Mr. Wilson. 

[The statement of Ms. Woolsey follows:]

Prepared Statement of Hon. Lynn C. Woolsey, Chairwoman, Subcommittee 

on Workforce Protections 

Thank you for coming here today for this legislative hearing on H.R. 3582, the 

Fair Home Health Care Act, which provides home health care workers with minimum labor protections under the Fair Labor Standards Act (FLSA). 

I introduced this legislation in response to a recent Supreme Court decision, Long 

Island Care at Home Ltd. v. Evelyn Coke, where the Court found that Evelyn Coke 

was not entitled to the minimum protections of the FLSA, specifically overtime pay. 

Senator Harkin has introduced a companion bill in the Senate. 

Evelyn Coke, who unfortunately could not be with us today, worked as a home 

health care worker for Long Island Care at Home, a for-profit home health care 

agency, for 20 years. 

Home health care was her vocation and she worked an average of 42 hours a 

week caring for the elderly and disabled. 

Sometimes she was required to work 24-hour shifts. 

But she was not paid overtime during her 2 decades years of work as a home 

health care worker. 

The Supreme Court found that Ms. Coke fell into a narrow exemption created by 

Congress in 1974, well over 30 years ago. 

Ironically, when Congress created the exemption, it did so in the context of expanding the FLSA to cover most domestic workers—-such as chauffeurs and housekeepers—-who previously had no labor protections. 

And the Congressional Record from that period shows that Congress did not mean 

to exclude home health care workers from the FLSA, but only those workers who 

provided baby sitting services for an elderly or disabled person on an ad hoc basis. 

Nonetheless, Court found that Congress’ intent was not clear, and that it meant 

to delegate the details of the exemption to the Department of Labor. And it upheld 

a DOL regulation that exempted caregivers who worked for 3rd parties from FLSA 

protections. 

I suppose we can argue about whether the Supreme Court’s decision was technically correct. But I do know that it was bad public policy, and if allowed to stand, 

4

continues the exploitation of a segment of America’s workforce—mostly made up of 

women and minorities—that does important and difficult work and barely makes a 

living wage. Moreover, there is nothing in the decision that acknowledged what 

most of us know: that home health care has changed drastically since 1974, when 

caregiving was largely provided by family and friends. Today, about 2.4 million 

workers are employed by nursing homes, home health agencies, assisted living and 

other residential facilities. Over 800,000 of these workers provide in-home care. 

As the baby boomers age, this need is going to explode. According to one estimate, 

in 2000, 13 million elderly needed caregiver services. By 2050, this number will 

grow to 27 million. And the disabled population needing care is also expected to 

grow during this period from 5 to 8 million. But even today there is a shortage of 

home health care workers. Turnover is very high, and nearly one-half of the home 

health care workers leave their jobs each year. 

This in turn impacts on the quality of care people receive and in many cases disrupts their care to the point where they are unable to stay at home. The culprit 

is low pay. The average home health care worker makes less than $10.00 an hour, 

about half of what other workers make. More than 20% live in poverty, and nearly 

half need some sort of public assistance to barely make ends meet. 

And they oftentimes do not have the work benefits that most of us rely upon, such 

as health care, vacation and sick time. 

This work is difficult and is taxing, both physically and emotionally. 

Now I know that there are those, including members of the disability community, 

who say that if we pay home health care workers a decent wage, the disabled we 

will not be able to afford in-home care. 

And I know that there are others who say that Medicaid and Medicare costs will 

soar, which will ultimately mean a cut-back in services to those who need it most. 

These concerns are overblown. After all, at least 16 states, under their own state 

laws—including California, New Jersey, New York, Illinois and Minnesota—already 

pay overtime to some or all of their home health care workers. 

And the sky has not fallen in those states. 

These states recognize that it is simply morally reprehensible to exclude hardworking home health care workers from minimum labor protections. 

H.R. 3582, the Fair Home Health Care Act restores minimum labor protections 

to these workers. 

It doesn’t cover occasional caregivers, and it doesn’t reach live-in caregivers either, 

who are already exempted from overtime but not minimum wages. 

It simply ensures that home health care workers are paid the bare minimum of 

what they deserve. I look forward to exploring the issues that this legislation presents and look forward to hearing the Panel’s testimony. 

Mr. WILSON. Thank you, Madam Chairwoman. 

And thank you for scheduling this hearing at an early hour. I 

want to commend you on getting people together. 

Good morning, and welcome to our witnesses. 

Before we begin, I would like to particularly welcome a good, 

longtime friend and fellow South Carolinian, Mr. Alfred Robinson. 

I had the good fortune of having served with Alfred in the South 

Carolina General Assembly, as he represented Pickens County, and 

I particularly appreciate his extraordinary academic background of 

being a graduate of Washington and Lee University in Lexington, 

Virginia. I know firsthand of its rigorous standards because I graduated from Washington and Lee several years before Alfred. Additionally, we are fellow graduates of the University of South Carolina Law School, one of America’s finest law schools. 

Turning to the subject of our hearing this morning, certainly, one 

of the most important labor laws in our Nation is the Fair Labor 

Standards Act. Since 1938 and subject to various amendments, the 

FLSA has provided that a covered nonexempt employee is entitled 

to be paid a Federal minimum wage and be paid overtime at time 

and a half when he or she works more than 40 hours a week. Since 

its enactment, the FLSA has been the lynchpin of our Nation’s 

wage and hour laws and has provided protections to literally hunVerDate 0ct 09 2002 15:13 May 15, 2008 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6602 G:\DOCS\110TH\WP\110-69\38308.TXT HBUD1 PsN: DICK
5

dreds of millions of workers. The FLSA represents the collective 

wisdom of Congress, the legislators who originally drafted the act 

and those who have subsequently amended it. 

Often in these instances, Congress has struck a balance between 

competing policies. The issue before us today, I believe is one of 

those instances. In the Fair Labor Standards Act’s amendments of 

1974, Congress exempted from minimum wage and overtime requirements certain workers who are ‘‘employed in domestic service 

employment to provide companionship services for individuals who, 

because of age or infirmity, are unable to care for themselves.’’

The 1974 amendment struck a balance between the protection of 

companionship service workers and the needs of elderly and infirm 

patients to obtain this care in these services. That balance recognizes that increasing the cost of companion care services by way of 

minimum wage and overtime requirements, it is likely to result in 

a hardship to many who need these services but for whom they 

would become too costly. 

The Department of Labor is charged with administering this law 

and issuing regulations under it. There has been significant debate 

and litigation relating to the Department’s regulations regarding 

companion care workers and specifically the question of whether 

the law exempts only those workers who are paid directly by the 

individual to whom these services are provided or whether the exemption covers all companion care workers irrespective of the technicalities of how they are paid. 

Through public rulemaking, the Department of Labor has taken 

the latter view that the exemption extends to cover all companion 

care workers. Earlier this summer, the United States Supreme 

Court, in a unanimous 9-to-0 decision known as Long Island Care 

at Home, upheld the authority of the Department of Labor to interpret these provisions of the Fair Labor Standards Act. They found 

that the Department’s interpretation was a lawful one. 

The legislation before us today appears intended to overturn that 

decision. I use the word ‘‘appears’’ advisedly, and I am glad of the 

fact that we are having a legislative hearing on this issue and the 

bill in particular. I am interested in hearing our witnesses today 

speak about the text and provisions of H.R. 3582. I would like their 

views as to whether this bill simply voids the regulation at issue 

in Long Island Care or whether it, in fact, goes beyond that. Some 

have suggested that H.R. 3582 will result in the companion care 

exemption becoming so limited as to be meaningless. I would welcome our witnesses’ views on that as well. 

It is important as we consider legislation in this area that we are 

mindful of the consequences of our actions. I suspect we will hear 

more today again that this is a matter of fundamental fairness for 

these workers, and I respect those witnesses who hold those views. 

But, as I mentioned earlier, the exemption of certain companion 

care workers from minimum wage and overtime represents a deliberate choice by Congress. Limiting or eliminating the exemption 

will absolutely serve to increase costs, not just for employers and 

agencies, but also for the Federal and state governments who pay 

for these services by way of programs like Medicare and Medicaid. 

That, in turn, is likely to have consequences for patient care. These 

are the issues I would like to explore today. 

6

In closing, let me again say I appreciate the opportunity to examine this legislation in our subcommittee this morning. I welcome 

our witnesses, and I yield back my time. 

[The statement of Mr. Wilson follows:]

Prepared Statement of Hon. Joe Wilson, Ranking Republican, 

Subcommittee on Workforce Protections 

Good morning, and welcome to our witnesses. Before we begin, I’d like to particularly welcome a good, old friend and fellow South Carolinian, Mr. Alfred Robinson. 

I’ve had the good fortune to have served with Alfred in the South Carolina General 

Assembly as he represented Pickens County, and I particularly appreciate his extraordinary academic background of being a graduate of Washington and Lee University in Lexington, Virginia. I know firsthand of its rigorous standards because 

I graduated from Washington and Lee several years before Alfred. 

Turning to the subject of our hearing this morning: Certainly one of the most important labor laws in our nation is the Fair Labor Standards Act. Since 1938, and 

subject to various amendments, the FLSA has provided that a covered, non-exempt 

employee is entitled to be paid a federal minimum wage, and be paid overtime at 

time-and-a-half when he or she works more than forty hours in a week. Since its 

enactment, the FLSA has been the linchpin of our nation’s wage-and-hour laws and 

has provided protections to literally hundreds of millions of workers. 

The FLSA represents the collective wisdom of Congress—the legislators who originally drafted the Act, and those who have subsequently amended it. Often in these 

instances, Congress has struck a balance between competing policies. The issue before us today I believe is one of those instances. 

In the Fair Labor Standards Amendments of 1974, Congress exempted from minimum wage and overtime requirements certain workers who are ‘‘employed in domestic service employment to provide companionship services for individuals who 

(because of age or infirmity) are unable to care for themselves.’’ The 1974 Amendments struck a balance between the protection of companionship service workers, 

and the needs of elderly and infirm patients to obtain this care and these services. 

That balance recognizes that increasing the cost of companion care services by way 

of minimum wage and overtime requirements is likely to result in a hardship to 

many who need these services, but for whom they would become too costly. 

The Department of Labor is charged with administering this law, and issuing regulations under it. There has been significant debate and litigation relating to the 

Department’s regulations regarding companion care workers, and specifically the 

question of whether the law exempts only those workers who are paid directly by 

the individual to whom these services are provided, or whether the exemption covers 

all companion care workers, irrespective of the technicalities of how they are paid. 

Through public rulemaking, the Department of Labor has taken the latter view—

that the exemption extends to cover all companion care workers. 

Earlier this summer, the United States Supreme Court—in a unanimous, nine to 

zero decision known as Long Island Care at Home—upheld the authority of the Department of Labor to interpret these provisions of the Fair Labor Standards Act. 

They found that the Department’s interpretation was a lawful one. The legislation 

before us today appears intended to overturn that decision. 

I use the word ‘‘appears’’ advisedly, and I am glad of the fact we are having a 

legislative hearing of this issue and the bill in particular. I am interested in hearing 

our witnesses today speak about the text and provisions of H.R. 3582. I would like 

their views as to whether this bill simply voids the regulation at issue in Long Island Care, or whether it in fact goes beyond that. Some have suggested that H.R. 

3582 will result in the companion care exemption becoming so limited as to be 

meaningless. I would welcome our witnesses views on that, as well. 

It is important as we consider legislation in this area that we are mindful of the 

consequences of our actions. I suspect we’ll hear more than once today that this is 

a matter of ‘‘fundamental fairness’’ for these workers—and I respect those witnesses 

who hold those views. But as I mentioned earlier, the exemption of certain companion care workers from minimum wage and overtime represents a deliberate 

choice by Congress. Limiting or eliminating that exemption will absolutely serve to 

increase costs—not just to employers and agencies, but also to federal and state governments, who pay for these services by way of programs like Medicare and Medicaid. That in turn is likely to have consequences for patient care. These are the 

issues I’d like us to explore today. 

7

In closing, let me say again that I appreciate the opportunity to examine this legislation in our Subcommittee this morning. I welcome our witnesses, and yield back 

my time. 

Chairwoman WOOLSEY. Thank you. 

I would like to introduce our very distinguished panel of witnesses who are here this morning in the order that they will speak. 

First, we will hear from Manuela Butler. She has been a home 

health care worker for over a decade. She currently cares for an elderly woman with dementia who needs round-the-clock care. She is 

a lifelong resident of Brooklyn, New York. 

Craig Becker serves as associate general counsel to the AFL-CIO 

and the SEIU Union. He served as a partner at Kirschner, 

Weinberg & Dempsey and taught labor and employment law at 

UCLA, the University of Chicago and Georgetown Law School. He 

has written numerous articles on labor and employment law and 

recently represented Evelyn Coke before the Supreme Court. He is 

a graduate of Yale College and Yale Law School. 

Alfred Robinson, Jr., is shareholder of Ogletree Deakins, LLP. 

Previously, he has served as the acting administrator and deputy 

administrator of the wage and hour division at the Department of 

Labor. Mr. Robinson was a member of the South Carolina House 

of Representatives from 1992 to 2002. 

So we should be referring to you as the honorable—I am sorry, 

Mr. Robinson—the honorable Mr. Robinson. 

Mr. WILSON. He is honorable. 

Chairwoman WOOLSEY. He is. He graduated from Washington 

and Lee University and received his law degree from the University of South Carolina. 

Dr. Dorie Seavey is the director of policy research for the Paraprofessional Healthcare Institute where she conducts research on 

economic, financial and policy issues affecting the direct-care workforce in the long-term care industry. She has served as an investigator at the Center for Social Policy and as a researcher at the 

Radcliffe Institute for Advanced Studies. Dr. Seavey has been published extensively in a variety of professional publications. She 

graduated with a BA from Stanford University and received her 

Ph.D. in economics from Yale University. 

William Dombi is the vice president for law at the National Association for Home Care and director of the Center for Health Care 

Law. He specializes in legal, legislative and regulatory advocacy on 

behalf of patients and providers of home health and hospice care. 

Mr. Dombi has extensive experience in health policy litigation and 

holds both a bachelor’s and law degree from the University of Connecticut. 

Henry Claypool is currently the policy director of Independence 

Care System where he focuses on policy that promotes the health 

and independence of people with disabilities on Medicare and Medicaid. He previously worked at the Social Security Administration 

and at Advancing Independence, an advocacy firm, to promote the 

self-sufficiency of individuals with disabilities. Mr. Claypool also 

worked at the Department of Health and Human Services in a 

number of capacities focusing on disability policy. He is a graduate 

of the University of Colorado. 

8

I welcome all of you. This is going to be a great panel. 

And for those of you who have not testified before the committee 

before, let me explain our lighting system. We have the 5-minute 

rule. When you begin speaking, the light will be green. When you 

have completed 4 minutes, it will turn to yellow, and that would 

be a good time to start wrapping up. Five minutes is the maximum 

amount of time, but we do not cut you off mid-sentence or midthought. I promise you that. But when the red light goes on, please 

know that your testimony should be complete. 

So we will hear from Ms. Butler, our first witness. 

STATEMENT OF MANUELA BUTLER, HOME HEALTH CARE 

WORKER 

Ms. BUTLER. Good morning. My name is Manuela Butler, and I 

thank you for inviting me to testify today. I am a home health care 

worker. I am a member of District Council 1707, Local 389, which 

is part of the American Federation of State, County and Municipal 

Employees. 

For the past 17 years I have been a home health care worker. 

It is physically demanding, dirty, difficult, emotionally challenging, 

but it can be satisfying. I have been deeply touched by all the people for whom I have worked and cared for. I am proud of my work. 

For the past decade, I have worked with a woman who has dementia and diabetes. Mrs. G. is 92 years old. I have seen the 

progress of dementia. It has taken away memories. 

I am nervous. 

Chairwoman WOOLSEY. Do not be nervous. We are nice. 

Ms. BUTLER. Okay. 

It takes away the ability to perform basic activities of daily life. 

Mrs. G. can no longer walk, sit up, bathe herself, cook, feed herself 

or clean her house, dress herself, shop for food or even use the toilet. But because of what I do for Mrs. G. 42 hours a week, from 

8 in the morning until 8 at night, she could live in her home. She 

is still the queen of her castle. Dementia can change a person, but 

it will never take Mrs. G.’s humanity because my work preserves 

her independence. What I do as a home health care worker helps 

Mrs. G. keep her dignity. 

Mrs. G. cannot sit up. She spends most of her time in bed. I 

bathe her each morning, cook her breakfast. I also prepare her 

lunch and dinner. I ask her what she would like to eat like she is 

in a restaurant. It is the little things that can maintain independence. 

Because Mrs. G. is in bed most of the day, we must be very careful to prevent pressure sores. Using a mat and draw sheet, I move 

her every 2 hours, wash her bottom, change her diaper. I also lift 

her and move her to be showered. I do her laundry, shop for her 

food. I update the visiting nurse and Mrs. G.’s family. Even though 

I regularly work more than 40 hours a week, I do not get overtime 

pay. 

Home care work can be dirty, difficult, but at times it can be also 

dangerous. This past April, Syndia Jean-Pierre Brye, a home care 

worker in my local union, was tragically killed on the job. A mentally ill family member shot her and her client and his family. This 

9

young woman was greatly missed by all who knew her. My local 

union and council are establishing a trust fund for her children. 

Unlike my current job, the agency I worked with before did not 

have a union. At my old agency, I had no paid leave, no health insurance and no pension. Thanks to AFSCME, I now can take a day 

off with pay if I am sick. I have health insurance. I have a pension 

plan. I am paid $9.40 an hour during the week and $11.00 an hour 

during the weekends. 

If the woman that works the night shift does not come in, I have 

to work through the night. I will get straight time pay, not time 

and a half. Under the Fair Labor Standards Act, I will get time 

and a half for my overtime for doing the same thing for Mrs. G. 

if she were in a nursing home. Because of my work, she could stay 

in her home, but I am deprived of overtime pay. That is just wrong 

and unfair. 

The Fair Home Health Care Act will protect workers like me who 

are not covered by the overtime and minimum wage protections 

under the Fair Labor Standards Act. 

In a few months, I will be 65 years old! I do not know when I 

will be able to retire. I cannot afford to retire. 

The work I do for Mrs. G. is important for the dignity and independence of persons with disabilities. Home health care workers 

should be respected, valued. Passing the H.R. 3582 is a good beginning. 

This year, you raised the minimum wage. Thank you. This increase was long overdue. Now you must help home care workers 

receive with overtime pay. I urge you to pass the Fair Home Care 

Act. 

Thank you. 

[The statement of Ms. Butler follows:]

Prepared Statement of Manuela Butler, Home Health Care Worker of District Council 1707, Local 389, of the American Federation of State, County 

and Municipal Employees (AFSCME) 

My name is Manuela Butler. I want to thank the Chairwoman and members of 

the Subcommittee for inviting me to testify today. I’m a home health care worker 

employed by a private, non-profit home care agency. I am also a member of District 

Council 1707, Local 389, which is part of the American Federation of State, County 

and Municipal Employees (AFSCME). District Council 1707 represents 25,000 community and social agency employees and AFSCME has 1.4 million members nationwide. 

For the past 17 years I have been a home health care worker caring for seniors 

with dementia and people with physical disabilities. It is physically demanding, 

dirty, difficult and emotionally challenging, but it can be satisfying. I have been 

deeply touched by all the people for whom I have cared. I am proud of my work. 

For the past decade, I have worked with a woman who has dementia and diabetes. Mrs. G. is 92. I have seen the progression of dementia. It can take away memories. It can take away the ability to perform basic activities of daily life. Mrs. G. 

can no longer walk, sit up, bathe herself, cook, feed herself, clean her home, dress 

herself, shop for food, or use the toilet. But because of what I do for Mrs. G. for 

42 hours a week, from eight in the morning until eight at night, she can live in 

her home. She is still the queen of her castle. Dementia may change a person but 

it will never take Mrs. G.’s humanity because my work preserves her independence. 

What I do as a home health care worker helps Mrs. G. keep her dignity. 

Because Mrs. G. cannot sit up, she spends most of her time in bed. I bathe her 

each morning and cook her breakfast. I also prepare her lunch and dinner. I ask 

her what she would like to eat today, like she is in a restaurant. It is the little 

things that can maintain independence. 

10

Because Mrs. G. is in bed most of the day we must be very careful to prevent 

pressure sores. Using a mat and draw sheet I move her every two hours, wash her 

bottom and change her diapers. I also lift her and move her to be showered. 

I also launder her bed linens and clothes and shop for her food. I update the visiting registered nurse and Mrs. G.’s family daily. 

Even though I regularly work more than 40 hours a week, I do not get overtime 

pay. 

Home care work can be dirty and difficult but at times it can also be dangerous. 

This past April, Syndia Jean-Pierre Brye, a home care worker in my local union, 

was tragically killed on the job when a mentally ill family member shot her, her 

client and his family. This young woman is greatly missed by all who knew her. 

My local union and council are establishing a trust fund for Syndia’s three children. 

Unlike my current job, the agency I worked with before did not have a union. At 

this previous agency, I had no paid leave, no health insurance and no pension. 

Thanks to AFSCME, I now can take a day off with pay if I am sick. I have health 

insurance and we have a pension plan. I am paid $9.40 an hour during the week 

and $11.00 an hour on the weekends. 

Should the woman that works the night shift after me not be able to work, and 

the agency is unable to send a replacement, I will be required to work through the 

night. If this were to happen I would get straight time pay, not time and a half 

for my overtime. 

Under the Fair Labor Standards Act, I would get time and half pay for my overtime hours for performing the same tasks for Mrs. G. if she were in a nursing home 

facility. But because my work helps her to stay in her home, I am deprived of overtime pay. That’s just wrong and unfair. 

H.R. 3582, the Fair Home Health Care Act, would protect home health care workers who, like me, are currently not covered by the overtime and minimum wage protections under the Fair Labor Standards Act. 

In a few months I will turn 65. I don’t know when I will be able to retire. I can’t 

afford to retire now. 

The work I do for Mrs. G. and the work other home health care workers do across 

the country, is essential for the dignity and independence of persons with disabilities. Our work should be respected and valued. Passing H.R. 3582 is a good beginning. 

Chairwoman WOOLSEY. Thank you very much. 

And Mr. Wilson had something he wanted to say. 

Mr. WILSON. Ms. Butler, the persons behind you cannot see this, 

but home health care workers are noted in your profession for having a very pleasant, happy, sincere smile, and you qualify. [Laughter.] 

Chairwoman WOOLSEY. Mr. Becker? 

STATEMENT OF CRAIG BECKER, ASSOCIATE GENERAL COUNSEL, AFL–CIO AND SERVICE EMPLOYEES INTERNATIONAL 

UNION 

Mr. BECKER. Chairwoman Woolsey, Ranking Member Wilson, 

other members of the committee, thank you for giving me the opportunity to testify here today. 

When I appeared before the Supreme Court on behalf of Ms. 

Coke, many of the Justices expressed concerns similar to Member 

Wilson about the cost of protecting home care workers by the Fair 

Labor Standards Act. I would have liked at that time to turn and 

point to my client sitting in the audience in a wheelchair being 

taken care of by her elderly son, so that the Justices could have 

understood the human cost of excluding home care workers from 

these basic minimum protections. 

The etiquette of the Supreme Court prevented me from doing 

that, so I was very happy when you invited me here to testify 

today. 

In my very brief time, I would like to make four points. 

11

First, when Congress extended the Fair Labor Standards Act to 

most domestic workers in 1974, it excluded babysitters and employees who provide ‘‘companionship services to individuals who, because of age or infirmity, are unable to care for themselves,’’ but 

it did not intend to open up the gaping hole in the Fair Labor 

Standards Act which exists today. 

What Congress intended in 1974 was to exempt babysitters, and 

we all understand what babysitters are, and something akin to 

babysitters. That is what the chief Senate sponsor called ‘‘elder sitters.’’ That is, in 1974, Congress understood companionship services to be services provided in a casual neighbor-to-neighbor relationship. Congress explicitly said it did not intend to exempt regular breadwinners, people responsible for their families’ support. 

Since 1974, however, this industry has changed dramatically, not 

only because the number of home care workers has exploded, but 

because the nature of their work and their employment relationship has changed. These are no longer neighbors employed on a 

casual basis, but employees largely employed by third-party agencies, most of whom who are for profit. The exemption is now being 

applied far beyond what Congress intended. Congress surely did 

not intend to exempt what is today the fastest-growing occupation 

in the country. 

Second, there is nothing about what home care workers do today 

which justifies treating them as second-class citizens, exempt from 

our Nation’s most basic employment standards. This work they 

perform is no less demanding than a file clerk, a nursing home 

worker or any of the other categories of employees who are protected by the Fair Labor Standards Act. 

Despite the misleading term in the statute, ‘‘companionship services,’’ these workers perform a range of personal and domestic 

tasks which have already been described. They bathe, feed and 

move clients. They cook and clean. They assist with medication and 

using the toilet. In fact, they do almost everything, except sit and 

act as a companion. And they perform these essential tasks usually 

for two, three and four clients on a single day, and none of them 

are typically neighbors. 

Their work is emotionally and physically demanding, as evidenced by the fact that the rate of on-the-job injury for home care 

workers is far above the national average. I ask you what possible 

justification could there be for not giving these workers the right 

to receive the minimum wage and additional pay for overtime enjoyed by almost every other employee in this country. There is simply none. 

Third, the exemption is not only unsound employment policy. It 

is unsound long-term care policy as well. There is a growing shortage of home care workers due to the aging population, and most 

consumers’ preference is to receive care at home as opposed to in 

an institution. This shortage is projected to increase dramatically. 

Low wages, obviously, contribute to this shortage, as well as to 

high turnover which impairs the quality of care, and that is why 

advocates for consumers—for example, the AARP, took Ms. Coke’s 

side in the Supreme Court because they understand—those who 

advocate for consumers understand—that the greatest threat to the 

quality and availability of services is not the extension of the Fair 

12

Labor Standards Act, but the failure to extend the Fair Labor 

Standards Act, which will exacerbate the shortage of home care 

workers. 

Finally, opponents of the bill will tell you that it will increase 

costs and lead to reductions in services, but, as the chairwoman 

has already mentioned, many states, including my home state of Illinois, already protect home care workers with their state wage and 

hour law, and the quality of care in those states has not been diminished. 

Only a small percentage of clients receive more than 40 hours of 

care per week. Therefore, the fiscal impact will be modest, as projected by the Clinton Labor Department. 

More importantly, there is simply no moral or policy justification 

for requiring the individuals who provide these essential services 

to bear that cost, whatever it is. There is no justification for asking 

these workers to bear the cost of our society’s unwillingness to devote sufficient resources to long-term care. It will only exacerbate 

the shortage of workers and decrease the quality of care. 

I urge the members of this subcommittee to recommend adoption 

of the Fair Home Health Care Act. 

Thank you. 

[The statement of Mr. Becker follows:]

Prepared Statement of Craig Becker, Associate General Counsel, Service 

Employees International Union 

Chairwoman Woolsey, Ranking Member Wilson, and other distinguished members 

of the subcommittee: Thank you for giving me the opportunity to appear before you 

today. When I appeared before the United States Supreme Court on April 16 of this 

year to argue on behalf of Evelyn Coke in the case that gives rise to the proposed 

bill, H.R. 3582, the Fair Home Healthcare Act, several of the Justices expressed concern about the additional cost that would result if homecare workers employed by 

third-party agencies were protected by the minimum standards contained in the 

Fair Labor Standards Act. I would liked to have responded by asking the Justices 

to look into the audience and see me client, Ms. Coke, who once cared for frail elderly and disabled individuals, sitting in her wheel chair, being cared for by her adult 

son. I would have liked to have responded in that manner so that the Justices could 

have understood the human consequences of holding down costs by excluding close 

to one million workers who provide physically and emotionally demanding and often 

life-sustaining care for the elderly and disabled in their homes the right to be paid 

the minimum wage and to receive extra pay when they work overtime. The conventions of argument in the high court prevented me from doing that so I was very 

pleased when your Committee invited me here today to testify. Unfortunately, Ms. 

Coke is now too ill to travel so I appear here today to speak not only for her but 

for the hundreds of thousands of homecare workers across the country like her who 

labor outside the protections of this country’s most basic labor law. 

I have represented individual workers and labor unions since 1982. I have taught 

labor and employment law at the UCLA School of Law, the University of Chicago 

Law School, and Georgetown Law School. I have published several articles on the 

Fair Labor Standards Act. For the past 15 years I have served as Associate General 

Counsel to the Service Employees International Union. The Union represents hundreds of thousands of homecare workers across the country. During that same time 

period, I have litigated a number of cases on behalf of homecare workers under the 

Fair Labor Standards Act, including the case recently decided by the Supreme 

Court, Long Island Care at Home, Ltd. v. Coke.1

The Fair Labor Standards Act and the Companionship Exemption 

The Fair Labor Standards Act (FLSA), adopted in 1938, guarantees American 

workers a minimum wage and payment at a rate of one and one-half times their 

regular rate for hours worked in excess of 40 in one week.2 Adoption of these minimum employment standards was based on a congressional finding that employment 

below such standards was ‘‘detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers.’’ 3

13

However, the Act was not originally applied to domestic employees, maids, butlers, cooks, and similar employees who worked in private homes because regulating 

their working conditions was thought to fall outside Congress’ power under the commerce clause. In 1961 and 1962, Congress extended the Act’s coverage to employees 

employed in an ‘‘enterprise engaged in commerce,’’ 4 including domestic employees 

so employed.5 In 1974, Congress passed a sweeping set of amendments to the FLSA, 

extending the coverage of the Act in several significant respects, including to all domestic employees, even those employed solely by private households.6 Congress’ intent at that time was to afford nearly universal coverage. The House Committee Report explained that it was ‘‘the committee’s intention to extend the Act’s coverage 

in such a manner as to completely assume the Federal responsibility insofar as it 

is presently7 practicable.’’ Such a purpose was consistent with the Supreme Court’s 

observation that ‘‘[b]readth of coverage’’ is ‘‘vital to [the Act’s] mission.’’ 8

While generally extending the coverage of the Act in 1974, Congress adopted one 

narrow exception to the extension of coverage to domestic employees—excluding 

babysitters and individuals providing ‘‘companionship services to individuals who 

(because of age or infirmity) are unable to care for themselves.’’ 9 In full, the resulting exemption from both the Act’s minimum wage and overtime requirements covers: any employee employed on a casual basis in domestic service employment to 

provide babysitting services or any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves (as such terms are defined and delimited 

by regulations of the Secretary). 

Congress intended the exemptions of babysitters and companions to be parallel. 

Senator Harrison Williams, the primary sponsor of the amendments, defined a companion as an ‘‘elder sitter.’’ 10 And both Committee Reports make clear that Congress did not intend exempt employees in either category to be ‘‘regular breadwinners or responsible for their families’ support.’’ 11 In adopting the exemption, 

Congress was ‘‘not concerned with the professional domestic who does this as a daily 

living.’’ 12 Rather, Congress intended to exempt only the casual form of employment 

epitomized by the teenager from around the block who occasionally watches another 

family’s children on a Friday night or ‘‘people who might have an aged father, an 

aged mother, an inform father, an infirm mother, and a neighbor comes in and sits 

with them.’’ 13

After the adoption of the amendments in 1974, however, the Department of Labor 

(DOL) adopted regulations that radically broadened the companionship exemption 

in a manner inconsistent with both Congress’ intent and the DOL’s treatment of 

babysitters . The DOL defined ‘‘companionship services’’ to include performance of 

a range of personal and domestic tasks not limited to provision of fellowship.14 In 

addition, the DOL provided that companions employed by third-party agencies and 

employed on a regular, even full-time, basis, unlike babysitters so employed, fall 

within the exemption.15

The Supreme Court’s Recent Decision Applying the Companionship Exemption to 

Homecare Workers Employed by Third-Party Agencies 

The question at issue in Long Island Care at Home, Ltd. v. Coke was whether 

the DOL’s regulation providing that the companionship exemption encompasses employees employed by third-party agencies rather than only by individual consumers 

and their families is consistent with Congress’ intent. The United States Court of 

Appeals for the Second Circuit had struck the regulation down, reasoning that ‘‘[i]t 

is implausible, to say the least, that Congress, in wishing to expand FLSA coverage, 

would have wanted the DOL to eliminate coverage for employees of third party employers who had previously been covered.’’ 16 But the Supreme Court reversed, holding that because Congress did not clearly express its intention in 1974, the courts 

must defer to the DOL’s construction of the companionship exemption.17 In an editorial on June 22, 2007, The New York Times opined, ‘‘[T]he justices were completely silent on the question of whether denying overtime to home health employees is good policy, let along morally justifiable. Clearly it is neither.’’ 18

I urge this Committee to recommend that Congress now make its intentions clear 

on this important question by amending the FLSA to provide that only employees 

employed on a casual basis to provide companionship services, and thus not employees employed by third party agencies, are exempt from the Act’s protections. 

Excluding Homecare Workers From the Minimum Standards Contained in the 

FLSA is Both Unsound Labor and Employment Policy and Unsound Long-Term 

Care Policy.19

In 1974, when the exemption was adopted, homecare, like babysitting, was largely 

provided by neighbors and friends. But since that time a homecare industry has 

been created and has experienced explosive growth. There are now almost 25,000 

14

homecare agencies in the U.S., with almost three-quarters being for-profit.20 Forprofit companies employed 62% of home health care aides as of 1999.21 Due to an 

aging population and the fact that both the elderly and disabled increasing desire 

to remain in their homes, nonprofessional homecare is now the fastest growing occupation in the United State.22 Leaving this rapidly expanding, professional homecare 

industry outside the ambit of out Nation’s most basic employment law is inconsistent with both the historic purpose of the FLSA and Congress’ progressive expansion of its coverage since 1938. Congress should not leave this gaping hole in what 

should be the broad, nearly universal coverage of the FLSA. 

The continued exclusion of homecare workers from the protections of the FLSA 

cannot be justified on grounds rooted in labor and employment policy. Today’s 

homecare workers can no longer be compared to the neighborhood teenager who 

babysits on a Friday night. Close to half of all home care workers work year-round, 

full-time.23 Despite the misleading term used in the statute—companionship services—homecare workers perform a range of personal and domestics tasks for clients 

they typically do not know before being assigned to care for them. Homecare workers bath, feed and move their clients. They cook for their clients and clean their 

homes. They assist their clients to take medication and use the toilet. They do almost everything except sit and provide companionship. And homecare workers often 

perform these essential services for two or more clients during a single work day. 

In fact, on average, each agency-employed homecare worker cares for five or more 

clients in an eight-hour work day.24

Homecare work is physically and emotionally demanding, resulting in rates of occupational injury far above the average for all private employees (280.5 occupational 

injuries and illnesses involving days away from work per 10,000 full-time workers 

compared to 188.3 for all private industry).25 The injury rate in home care is worsened by the fact that, unlike in a nursing homes, home care aides must lift and 

transfer clients without the help of a mechanical lifting device or the assistance of 

co-workers.26 Home care workers often suffer emotional abuse from mentally impaired clients who may have severe behavioral problems.27 Homes may be ‘‘untidy 

and depressing,’’ and clients may be ‘‘angry, abusive, depressed, or otherwise difficult.’’ 28 Workers who perform similar work in nursing homes and like facilities are 

fully covered by the FLSA. There simply is no valid reason why those who perform 

this work in private homes should not be similarly covered. 

Almost 90% of homecare workers are women and they are predominantly members of minority groups (34% African American; 18% Latina; and 20.4% immigrant).29 Exemption of homecare workers thus has a disproportionate impact on 

women and minorities and increases existing income inequalities. For that reason, 

just as women’s rights advocates and civil rights organizations lobbied Congress to 

extend the FLSA to domestics in 1974,30 they now advocate closing the companionship loophole.31

Placing homecare workers outside the mainstream of workers covered by our Nation’s most fundamental employment standards is not only unsound labor and employment policy, but also unsound long-term care policy as we face a growing shortage of workers willing and able to perform these essential services. There is a welldocumented and growing shortage of homecare workers as a result of the aging population and the increasing cost of and growing dissatisfaction with nursing home 

care. It is this shortage of homecare workers that led advocates for the aged and 

disabled, for example, the AARP and American Association of People with Disabilities to support Ms. Coke’s position in the Supreme Court. The AARP forcefully argued that exempting homecare workers employed by third party agencies from ‘‘the 

minimum requirements of the FLSA does not serve, bur rather compromises the interests of both older and disabled persons.’’ 32

Employment of home health aides is projected to increase by 56% in the next decade, making it the fastest growing occupation in the Nation. Employment of personal and home care aides is expected to grow by 41% during the same time period, 

making it tenth on that list.33 As of 2004, Federal statistics documented 701,000 

personal home care aides and 624,000 home health care aides.34 The Bureau of 

Labor Statistics projects that there will be a need for 974,000 home health aides 

and 988,000 personal and home care aides by 2014.35

Unfortunately, the demographics of those who provide the services are not keeping up with those in need of them. While the population over age 85 will double 

in the next 30 years, the number of persons in the demographic of most home care 

workers will increase by just 9%.36 The General Accounting Office has developed a 

measure called the ‘‘elderly support ratio,’’ which represents the ratio of women 

aged 20-54 (who currently provide the vast majority of care) to persons aged 85 and 

over. In 2000, that ratio was 16:1. The ratio is projected to drop to 12:1 by 2010, 

9:1 by 2030, and 6:1 by 2040.37 Nor is the resulting care gap likely to be filled by 

15

informal, uncompensated care because the number of potential family caregivers for 

each person needing care is also projected to decrease from 11 in 1990 to 4 in 

2050.38

This labor shortage has already produced adverse consequences for home care clients. Medicaid home care clients have filed lawsuits in Federal and state court challenging home care payment rates on the ground that their inadequacy has caused 

a shortage of necessary services.39 They have documented incidents where individuals in need of critical services have been trapped for hours in bed or in a bathroom, 

or without food or water, because of the unavailability of home care aides.40 The 

critical shortage of home care aides also ‘‘encourage[s] unnecessary and premature 

institutional placements among Medicaid participants.’’ 41 Those unnecessary placements, in turn, cost the Federal and state governments far more than would otherwise be spent on home care services. 

The current and growing labor shortage is made worse by low wages and the demanding nature of the work.42 The AARP observes that ‘‘[t]he undersupply of home 

are workers is consistently attributed to inadequate wages and benefits, and the 

shortage of workers leads to both reductions in quality of care and disruption in access to care for older and disabled persons.’’ 43 The Bureau of Labor Statistics found 

that the earnings of home care workers ‘‘remain among the lowest in the service 

industry,’’ with a 1998 mean annual income for home health aides of $16,250 and 

for home care aides of $14,920.44 One in five home health care aides lives below the 

poverty level and they are twice as likely as other workers to receive food stamps 

and to lack health insurance.45

Many potential home care workers have the option to choose jobs that are better 

paying or less demanding than home care, and those that do choose home care work 

often leave it shortly46,47 thereafter. File clerks, for example, earn significantly more 

than home care aides. Turnover, attributable to low wages as well as the physically 

and emotionally demanding nature of homecare,48 has been estimated at 40-100% 

per year by agencies interviewed for a recent news article and at 12-60% by the Department for Health and Human Services.49 This turnover is expensive, costing approximately $3,362 each time a worker needs to be replaced.50 It also tends to diminish the quality and continuity of patient care.51

When the FLSA was extended to domestic employees in 1974, Congress recognized the positive effect coverage would have on both the size and quality of the 

domestic workforce. The Senate Committee Report explained: [T]he demand for 

household workers is not being met. Bringing domestics under the Fair Labor 

Standards Act would not only assure them a minimum wage but would enhance 

their status in the community. It is expected that the supply of domestic workers 

will increase as their pay and working conditions improve. 

Minimum wages should serve to attract skilled workers to these jobs at a time 

when the need for skilled domestic employees is greatly increasing.52

The same unmet demand exists today for homecare workers and a similar extension of coverage would have a similar positive effect on that workforce. In words 

that apply equally to the extension of coverage to home care workers being considered today, Senator Javits explained in 1972, ‘‘The more the job becomes dignified 

and recognized as honorable employment, such as any other employment—working 

in a factory or working here—the better it will be from the point of view of getting 

that kind of service, which Americans so urgently need.’’ 53 As the AARP informed 

the Supreme Court, ‘‘Providing a living wage will attract more workers as well as 

increase job satisfaction and retention for those already providing care.’’ 54

In 2001, the Clinton administration proposed a sweeping revision of the companionship regulations based on a careful analysis of Congress’ intent and the policy 

interests at stake.55 The proposals included both a narrower definition of companionship services and a reversal of the rule exempting employees of third-party agencies. However, the proposals did not become final because they were withdrawn by 

the Bush administration without any form of analysis or justification shortly after 

it assumed office.56

The failure of both the judicial and executive branches to address this critical 

problem demands legislative action. 

Cost Objections Are Not Well Founded 

The primary objection to the Fair Home Healthcare Act is that it will increase 

the cost of homecare. This cannot be considered a valid objection or providers of all 

essential services would be exempt from the FLSA’s protections. Yet police and fire 

personnel are covered, hospital employees are covered, nursing home employees are 

covered, and other providers of essential services are covered. Why should homecare 

workers uniquely carry the burden of society’s need for their services. 

16

Moreover, the economic impact of the proposed legislation has been seriously overstated. In part this is due to a failure to consider that some portion of any increase 

in costs due to higher wages will be offset by savings from reduced turnover.57 In 

its 2001 proposal, the Clinton Administration estimated the effect on Medicare costs 

as negligible given limited expenditures for homecare services under that program. 

Additional Medicaid costs were estimated at between $30 and 40 million, of which 

57% would have been the Federal share. The combined public and private increase 

in expenditure was estimates to be no more than $75 million.58

Suggestions that extending these minimum protections to homecare workers will 

lead to excessive costs and a deleterious effect on the quality of care are definitively 

belied by the fact that a significant number of states, for example my home state 

of Illinois,59 already cover homecare workers under their state wage and hour laws 

and no opponent of the proposed legislation has been able to point to any evidence 

of an adverse effect on long-term care in those states. 

Moreover, a large proportion of the services provided by homecare workers is publicly funded. Medicare and Medicaid account for more than half of the funds paid 

to free-standing homecare agencies.60 The Federal and state governments should 

not purchase these essential services at prices that depend on workers not being 

paid in compliance with the minimum standards of the FLSA. As President Roosevelt stated, ‘‘A self-supporting and self-respecting democracy can plead .* * * no 

economic justification for chiseling workers’ wages or stretching workers’ hours.’’ 61

Finally, and most importantly, consumers of homecare services well understand 

that the greatest threat to their ability to secure these essential services is not any 

increase in costs that might result from homecare workers gaining the same rights 

enjoyed by virtually all other American workers to be paid in accordance with the 

minimum standards established in the FLSA. Rather, consumers understand that 

the greatest threat to their ability to secure such services lie in homecare workers 

not gaining that right and continuing to labor in the shadows of our economy. As 

the AARP concluded its argument to the Supreme Court in Ms. Coke’s case, ‘‘FLSA 

protections should be extended to home care workers * * * as such protections will 

strengthen the home care workforce and result in higher quality of care and continuity of care for America’s older and disabled persons.’’ 62

The Fair Home Healthcare Act Is a Proper Solution to the Problem 

The Fair Home Healthcare Act would amend the Fair Labor Standards Act to 

make the exemptions of babysitters and companions parallel. The language of the 

companionship exemption would be amended by inserting the limiting term ‘‘on a 

casual basis,’’ which currently precedes only the term ‘‘to provide babysitting services,’’ before the term ‘‘to provide companionship services’’ thus exempting only employees who provide babysitting or companionship services ‘‘on a casual basis.’’ In 

addition, the Act would make clear that the exemption only applies to employees 

whose employment is ‘‘irregular or intermittent’’ and does not apply to employees 

‘‘whose vocation is the provision of babysitting or companionship services,’’ who are 

‘‘employed by an employer or agency other than the family or household using such 

services,’’ or whose employment exceeds 20 hours per week. These criteria are 

drawn directly from the DOL current definition of ‘‘on a casual basis’’ which was 

promulgated shortly after Congress adopted the 1974 amendments.63

Domestic employees who live in the homes where they work, including homecare 

workers, would continue to be exempt from the FLSA’s overtime provision.64

In short, the Act would place under the FLSA’s protective umbrella all employees 

who make their living providing the essential services that constitute today’s 

homecare while leaving unprotected only those casual employees who do not need 

such protection and who Congress intended to exclude in 1974. 

Conclusion 

I urge the Committee to recommend that Congress adopt the Fair Home 

Healthcare Act and thank you for inviting me here today to testify concerning the 

Act. 

ENDNOTES

1 127 S.Ct. 2339 (2007). 

2 29 U.S.C. §§ 206, 207. 

3 29 U.S.C. § 202(a). 

4 29 U.S.C. §§ 206(a), 207(a)(1), 203(r) and (s). 

5See, e.g., Brennan v. Veterans Cleaning Service, Inc., 482 F.2d 1362 (5th Cir. 1973); Homemakers Home and Health Care Services, Inc. v. Carden, 1974 U.S.Dist.LEXIS 9150 (M.D.Tenn. 

April 4, 1974), aff’d, 538 F.2d 98 (6th Cir. 1976). See also 1972 DOLWH LEXIS 19 at *2-3 (Aug. 

20, 1972); Wage and Hour Opinion Letter 147, 1971 WL 33084 (Nov. 17, 1971). 6Publ. Law 93-259 (1974). 

17

7 H.R. Rep. No. 93-232, 93d Cong., 1st Sess. 8 (May 29, 1973). 

8Powell v. United States Cartridge Co., 339 U.S. 497, 516 (1950). 

9 29 U.S.C. § 213(a)(15). An additional exemption to the Act’s overtime provisions was created 

for live-in domestic employees. See 29 U.S.C. § 213(b)(21). 10Senator Williams explained, ‘‘’Companion,’ as we mean it, is in the same role—to be there 

and to watch an older person, in a sense.’’ Thereupon, Seantor Burdick interjected, ‘‘in other 

words, an elder sitter,’’ and Senator Williams replied, ‘‘Exactly.’’ 119 Cong. Rec. 24801 (1973). 11 H.R. Rep. No. 93-913, 93d Cong., 2d Sess. 36 (March 15, 1974); S. Rep. No. 93-690, 93d 

Cong., 1st Sess. 20 (Feb. 22, 1974). 12 119 Cong. Rec. 24801 (1973) (statement of Senator Burdick). 13 119 Cong. Rec. 24801 (1973) (statement of Senator Burdick). 14 29 C.F.R. § 552.6 provides: As used in section 13(a)(15) of the Act, the term companionship 

services shall mean those services which provide fellowship, care, and protection for a person 

who, because of advanced age or physical or mental infirmity, cannot care for his or her own 

needs. Such services may include household work related to the care of the aged or infirm person such as meal preparation, bed making, washing of clothes, and other similar services. They 

may also include the performance of general household work: Provided, however, That such 

work is incidental, i.e., does not exceed 20 percent of the total weekly hours worked. The term 

‘‘companionship services’’ does not include services relating to the care and protection of the 

aged or infirm which require and are performed by trained personnel, such as a registered or 

practical nurse. While such trained personnel do not qualify as companions, this fact does not 

remove them from the category of covered domestic service employees when employed in or 

about a private household. 15 29 C.F.R. § 552.109(a). The contrasting regulations covering babysitters are at 29 U.S.C. 

§§ 552.5, 552.104, and 552.109(b). 16 376 F.3d 118, 133 (2d Cir. 2004). 17 127 S.Ct. 2339 (2007). 18 Congress and the Caregivers, The New York Times, June 21, 2007, A22. 19The following section of my testimony has benefitted from the briefs of amicus curiae AARP 

et al., Alliance for Retired Americans et al., and Urban Justice Center et al. filed in Long Island 

Care at Home. 20 National Center for Health Workforce Analyses, Nursing Aides, Home Health Aides, and 

Related Occupations viii, 12 (U.S. Dep’t of Health and Human Servs., 2004). 21 Rhonda J.V. Montgomery, et al., A Profile of Home Care Workers from the 2000 Census, 

45:5 Gerontologist 593, 596 (2005). 22 Bureau of Labor Statistics (‘‘BLS’’), U.S. Department of Labor, Occupational Outlook Handbook 2006-2007 (Nursing, Psychiatric and Home Health Aides) (available at http://

www.bls.gov/oco/home.htm). 23Montgomery et al. at 595, 597; Yoshiko Yamada, Profile of Home Care Aides, Nursing Home 

Aides, and Hospital Aides: Historical Changes and Data Recommendations, 42:2 Gerontologist 

199, 202 (2002). 24 National Association for Home Care and Hospice, Basic Statistics about Home Care, Table 

15 (2001) (available at http://www.nahc.org/consumer/hcstats.html); National Association for 

Home Care and Hospice Care, Basic Statistics about Home Care, Table 14 (2004) (available at 

http://www.nahc.org/04HC—stats.pdf). 25 Nat’l Center for Health Workforce Analysis, Nursing Aides, Home Health Aides, and Related Health Care Occupations 10, 109 (U.S. Dep’t of Health and Human Servs., 2004). 26 BLS (Nursing, Psychiatric and Home Health Aides; Personal and Home Care Aides). 27 UCSF Center for California Health Workforce Studies, An Aging U.S. Population and the 

Health Care Workforce: Factors Affecting the Need for Geriatric Care Workers 33 (Feb. 2006) 

(available at http://www.futurehealth.ucsf.edu/geria/062404-Geria%20Final.pdf). 28 BLS (Personal and Home Care Aides); see also id. (Nursing, Psychiatric and Home Health 

Aides); Jane Gross, New Options (and Risks) in Home Care for Elderly, The New York Times, 

Mar. 1, 2007. 29 UCSF, Health Workforce Studies, Table B2. 30 Representative Shirley Chisholm led the effort to extend the FLSA to domestic employees. 

In fact, 17 of the 19 women then serving in Congress, representing both parties, wrote a letter 

to the House Committee expressing ‘‘great concern’’ that the extension of coverage to domestic 

workers might be dropped from the bill. H.R. Rep. 93-913 at 34. Senator Williams recognized 

that ‘‘many who watch out legislative activities view the coverage of domestics as an effort to 

remedy racial and sexual discrimination.’’ 119 Cong. Rec. 24,799 (1973). 31The Asian American Legal Defense and Education Fund, Mexican American Legal Defense 

and Educational Fund, Puerto Rican Legal Defense and Education Fund, National Women’s Law 

Center, National Partnership for Women and Families, and Washington Lawyers’ Committee for 

Civil Rights and Urban Affairs filed a brief in support of Ms. Coke in the Supreme Court. 32Long Island Care at Home, Brief Amici Curiae of AARP and Older Women’s League at 4. 33 BLS (Tomorrow’s Jobs); Daniel E. Hecker, Occupational Employment Projects to 2014, 

Monthly Labor Rev., Nov. 2005, at 75 (citing BLS statistics). 34 BLS (Nursing, Psychiatric and Home Health Aides; Personal and Home Care Aides); Hecker 

at 75 (citing BLS statistics). 35 Id. 36William J. Scanlon (Director, Health Care Issues, General Accounting Office), Nursing 

Workforce, Recruitment and Retention of Nurses and Nurse Aides Is a Growing Concern: Testimony before the Senate Committee on Health, Education, Labor and Pensions, GAO-01750T, at 

9 (released May 17, 2001) (available at http://www.gao.gov/new.items/d01750t.pdf). The total 

working age population (persons aged 18 to 64) will grow by just 16% during this time period. 

Id. 

18

37Scanlon at 9; UCSF Health Workforce Studies at 34 (citing United States General Accounting Office, GAO analysis of U.S. Census Bureau projections of total resident population, Middle 

Series (Dec. 1999)). The ratio of the entire working age population to the population over 85 

will go from 39.5 workers per elderly person in 2000 to 22.1 in 2030 and 14.8 in 2040. Scanlon 

at 9. These figures assume relatively high immigration, one million net annually, through 2030. 

UCSF Health Workforce Studies at 35. 38 Nora Super, National Health Policy Forum Background Paper, Who Will Be There to Care? 

The Growing Gap between Caregiver Supply and Demand 3 (Jan. 23, 2002) (available at http:/

/www.nhpf.org/pdfs—bp/BP—Caregivers—1-02.pdf) (2040 projections) (citing National Family 

Caregivers Association, Family Caregiving Statistics, Kensington, Maryland, 2000). 39Dorie Seavey and Vera Salter, Paying for Quality Care: State and Local Strategies for Improving Wages and Benefits for Personal Care Assistants 14-17 (American Ass’n of Retired Persons: 2006) (available at http://assets.aarp.org/rgcenter/il/2006—18—care.pdf). The legal 

claims in these actions have been based on requirements of the Medicaid statute and Federal 

prohibitions against discrimination based on disability. Two cases have resulted in settlements, 

a Federal lawsuit that prompted Mississippi to agree to increase payments to personal care attendants by $0.50 per hour and to seek funding from the legislature for additional pay increases, 

and a state court case that caused New Hampshire to agree to establish a new rate-setting 

methodology based on the average cost of providers. Id. A California lawsuit was dismissed on 

the ground that the Medicaid statute does not confer individually enforceable rights and that 

the state was not violating disability law. Sanchez v. Johnson, 416 F.3d 1051, 1061, 1067-68 

(9th Cir. 2005). A district court order requiring Arizona to offer a rate of pay that guarantees 

that clients will receive the services for which they qualify is on appeal to the Ninth Circuit. 

Ball v. Biedess, 2004 WL 2566262 **6-7 (Aug. 13, 2004), on appeal sub nom. Ball v. Rodgers. 

A class has been certified and a motion to dismiss denied in a pending Wisconsin case. See Nelson v. Milwaukee County, 2006 WL 290510, No. 04-C-193 (E.D. Wis. Feb. 7, 2006); Bzdawka 

v. Milwaukee County, 238 F.R.D. 469 (E.D. Wis. Oct. 13, 2006). 40See, e.g., Ball, 2004 WL 2566262 at *4 & n.3. 41 Allen J. LeBlanc et al., State Medicaid Programs Offering Personal Care Services, 22:4 

Health Care Financing Rev. 155, 170 (2001). 42General Accounting Office, Adults with Severe Disabilities: Federal and State Approaches 

for Personal Care and Other Services, GAO/HEHS-99-101, at 35 (May 1999). 43Long Island Care at Home, Brief Amici Curiae of AARP and Older Women’s League at 8. 44 66 Fed. Reg. 5483 (2001) (citing BLS Occupational Employment Statistics survey). 45William J. Scanlon, Nursing Workforce, Recruitment and Retention of Nurses and Nurse 

Aides is a Growing Concern: Testimony before the Senate Committee on Health, Education, 

Labor and Pensions, GAO-01-750T, at 13 (released May 17, 2001). 46Scanlon at 12; Seavey and Salter at 1-2. In 2000, file clerks earned more than home health 

aides and significantly more than personal and home care aides. Paraprofessional Healthcare 

Institute, Long-Term Care Financing and the Long-Term Care Workforce Crisis: Causes and Solutions 19 (Citizens for Long-Term Care: 2003) (available at http://www.paraprofessional.org/

publications/CLTC—doc—rev1.pdf) (citing BLS data). 47Paraprofessional Healthcare Institute, Long-Term Care Financing and the Long-Term Care 

Workforce Crisis: Causes and Solutions 19 (Citizens for Long-Term Care: 2003) (available at 

http://www.paraprofessional.org/publications/CLTC—doc—rev1.pdf) (citing BLS data). 48 BLS (Nursing, Psychiatric and Home Health Aides; Personal and Home Care Aides); Yamada at 204. 49Gross, New Options; National Center for Health Workforce Analyses et al., Nursing Aides, 

Home Health Aides, and Related Health Care Occupations—National and Local Workforce 

Shortages and Associated Data Needs 14 (U.S. Dep’t Health and Human Servs.: 2004) (available 

at ftp://ftp.hrsa.gov/bhpr/nationalcenter/RNandHomeAides.pdf) (citing R. Stone, Frontline Workers in Long-Term Care: A Background Paper (Institute for the Future of Aging Services: 2001)). 

Super at 4 (national turnover of 28%); Seavey & Salter at 2 (40-50% annual turnover); New 

York Association of Homes & Services for the Aging, The Staffing Crisis in New York’s Continuing Care System: A Comprehensive Analysis and Recommendations 17 (2000) available at 

http://www.nyahsa.org/docs/Staff.pdf (40-60% turnover in one year and 80-90% in 2 years). 50 Robyn Stone, The Direct Care Worker: A Key Dimension of Home Care Policy, 16:5 Home 

Health Care Management & Practice 339, 341. Stone points out that this figure does not even 

take into account lost productivity during time that new workers are trained and gain experience, or the attrition between initial hiring and placement. Id. 51Stone at 341. 52S. Rep. 93-300, 93d Cong., 1st Sess. 21 (July 6, 1973). See also S. Rep. No. 93-690 at 19 

(same); 119 Cong. Rec. 24,360 (1973) (‘‘[I]n many areas of the country, including New York, 

* * * there are not enough workers willing to engage in domestic employment to meet the demand. Bringing minimum wage coverage to domestics will be one step, and a very important 

step, to bringing some measure of dignity to this type of employment and thus serve to attract 

a more qualified and more stable workforce to the job.’’). 53 118 Cong. Rec. 24,705 (1972). 54Long Island Care at Home, Brief Amici Curiae of AARP and Older Women’s League at 11. 55 66 Fed. Reg. 5481 et seq. (2001). 56 67 Fed. Reg. 16668 (2002). 57Long Island Care at Home, Brief Amici Curiae of AARP and Older Women’s League at 1213 

(and sources cited therein). 58 66 Fed. Reg. 5486. 59 820 ILCS 105/3(d), 105/4(a)(1), 105/4a and Ill. Admin. Code tit. 56, § 210.110 (exempting 

individuals employed in domestic service but defining category to exclude ‘‘person whose primary duty is to be a companion for individual(s) who are aged or infirm’’) 60 66 Fed. Reg. 5483. 

19

61Quoted in H.R. Rep. No. 93-913 at 8. 62Long Island Care at Home, Brief Amici Curiae of AARP and Older Women’s League at 15. 63 29 C.F.R. § 552.5 provides that ‘‘the term casual basis * * * shall mean employment which 

is irregular or intermittent, and which is not performed by an individual whose vocation is babysitting.’’ 29 C.F.R. § 552.104(b) further provides that employment ‘‘would usually be on a ‘casual 

basis,’ whether performed for one or more employers, if such employment by all such employers 

does not exceed 20 hours per week in the aggregate.’’ Finally, 29 C.F.R. § 552.109(b) provides 

that ‘‘[e]mployees who are engaged in providing babysitting services and who are employed by 

an employer or agency other than the family or household using their services are not employed 

on a ‘casual basis’ for purposes of the section 13(a)(15) exemption. Such employees are engaged 

in this occupation as a vocation.’’ 64 29 U.S.C. § 213(b)(21). 

Chairwoman WOOLSEY. Thank you. 

Mr. Robinson? 

STATEMENT OF ALFRED ROBINSON, JR., SHAREHOLDER, 

OGLETREE DEAKINS, LLP 

Mr. ROBINSON. Thank you, Madam Chair. 

Madam Chair, Ranking Member Wilson and honorable members 

of the subcommittee, my name is Al Robinson, and I am an attorney in the Washington office of the law firm Ogletree Deakins 

Nash Smoke & Stewart, and as referenced earlier, I was formerly 

at the United States Department of Labor. 

Thank you for this opportunity to speak with you about the Section 13(a)(15) exemption in the Fair Labor Standards Act, commonly referred to as the companionship service exemption, and the 

proposed bill H.R. 3582, the Fair Home Health Care Act, introduced by Chairman Woolsey. 

As you are aware, Congress amended the Fair Labor Standards 

Act in 1974 essentially to extend coverage of the act. However, included in these amendments was this exemption for companionship 

services, and specifically it exempts from the minimum wage and 

overtime protections an employee employed on a casual basis in domestic service to provide babysitting services or an employee employed in domestic service, to provide companionship services for 

individuals who, because of age or infirmity, are unable to care for 

themselves. 

In this provision, Congress also gave the Secretary of Labor the 

authority to define these terms. In 1975, the Labor Department did 

just that. They issued regulations found in 29 CFR Part 552. In 

particular, Part 552.109(a), which is entitled the Third-Party Employment Regulation, states: ‘‘Employees providing companionship 

services and who are employed by an employer or agency, other 

than family or household using their services, are exempt from the 

act’s minimum wage and overtime requirements by virtue of the 

companionship services exemption,’’ the 13(a)(15) exemption. Thus, 

the companionship services exemption has applied for more than 

30 years to employees of a third-party employer or agency based 

upon the regulations of the Department which were issued in 1975. 

Also, in this regulation, the Department exercised a conscious decision to exempt third-party employees with this exemption. As 

part of its rulemaking responsibilities, the Department’s proposed 

rule was drafted to preclude the application of this exemption to 

third-party employees. However, based upon the comments, the 

final regulation that the Department issued did, in fact, apply the 

exemption to employees of third parties, and Section 552.109 reads 

20

as it exists today. Thus, the application of the companionship services exemption to employees of third-party employers or agencies is 

the result of a deliberate, well-reasoned rulemaking process and a 

longstanding interpretation. 

The rationale given by the Department is persuasive and direct. 

First, it effectuates the statutory language and is consistent with 

prior practices. The language of the statute is quite clear. The companionship services apply to any employee providing such services. 

The statute does not qualify the words ‘‘any employee.’’ It is not 

ambiguous. The statute does not contain words that restrict the application of the exemption. 

It conditions eligibility of the exemption upon the activities of the 

employee and not upon the employer who hired them. Many other 

exemptions of the FLSA do turn on the activities. I will just mention a couple: the bona fide executive, administrative or professional exemption in 13(a)(1), agricultural in 13(a)(16). So this is 

very in keeping with other regulations and other provisions of the 

statute. 

In addition to effectuating the statutory language, the application of the companionship services exemption to employees of third 

parties is consistent with congressional intent. Several statements 

in the record made no distinctions between the employee working 

for a family member directly versus a third party. 

Finally, the Supreme Court, as has been referenced, resolved any 

conflict in the Department’s regulations. They found the regulation 

of 552.109 as valid and controlling. 

In the little time I have remaining, I would offer a few observations about the legislation. Its purpose is to reverse the decision in 

the Long Island Health Care v. Coke case. However, I submit that 

it goes well beyond that intent. 

H.R. 3582 would limit eligibility for companionship services to 

the casual babysitter or companionship service provider in very 

limited circumstances, and that is they must be irregular or intermittent, they must be an individual whose vocation is not providing 

babysitting or companionship services or is an individual not employed by a third party—in other words, employed only by the family or household of the recipient—and, finally, does not work more 

than a total of 20 hours a week providing babysitting or companionship services to one or more individuals. 

I would welcome the opportunity to address any questions that 

you may have, and I thank you for this opportunity. 

[The statement of Mr. Robinson follows:]

Prepared Statement of Alfred B. Robinson, Jr., Shareholder, Ogletree 

Deakins LLP 

Madam Chair, Ranking Member Wilson and Honorable Members of the Subcommittee, my name is Alfred B. Robinson Jr. I am an attorney in the Washington 

office of Ogletree, Deakins, Nash, Smoak & Stewart and formerly was at the United 

States Department of Labor where I served as a Senior Policy Advisor, Deputy Administrator for Policy of the Wage and Hour Division and Acting Administrator of 

the Wage and Hour Division. Thank you for this opportunity to speak with you 

about the Section 13(a)(15) exemption in the Fair Labor Standards Act (FLSA), commonly referred to as the ‘‘companionship services exemption’’, and the proposal bill 

H.R. 3582, the Fair Home Health Care Act, introduced by Chair Woolsey. 

As you are aware Congress amended the FLSA in 1974 essentially to extend coverage of the Act. Included in these 1974 amendments was the Section 13(a)(15) companionship services exemption. Specifically, it exempts from the minimum wage and 

21

overtime requirements ‘‘an employee employed on a casual basis in domestic service 

* * * to provide babysitting services or any employee employed in domestic service 

* * * to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves * * *’’ 29 USC § 213(a)(15). Also, Congress 

granted the Secretary of Labor in this statutory provision the authority to define 

these terms by regulations. 

In 1975, the Department of Labor (Department) issued regulations in 29 CFR 

Part 552to address the companionship services exemption. In particular, Section 

552.109(a), entitled ‘‘[t]hird party employment’’, explicitly states: 

Employees * * * providing companionship services, as defined in §522.6, and who 

are employed by an employer or agency other than family or household using their 

services, are exempt from the Act’s minimum wage and overtime requirements by 

virtues of section 13(a)(15) 29 CFR §552.109(a). Thus, the companionship services 

exemption has applied to employees of a third-party employer or agency based upon 

the regulations of the Department since it first issued such guidance in 1975. 

Also, Section 552.109 represents a conscious decision by the Department that the 

companionship services exemption should apply to third-party employers. As part of 

its rulemaking responsibilities, the Department’s proposed rule was drafted to preclude the application of the exemption to employees of a third-party. 30 Fed. Reg. 

35382, 35385 (1974). However, in light of a thorough examination of the comments, 

the final regulation issued by the Department applied the exemption to employees 

of third-parties and Section 552.109(a) reads as it presently exists. Thus, the application of the companionship services exemption to the employees of third-party employers or agencies is the result of a deliberate, reasoned rulemaking process. 

The rationale given by the Department for this regulation is persuasive and direct—it effectuates the statutory language and is consistent with prior practices. 

The statutory language is quite clear—the companionship services exemption applies to ‘‘any employee’’ providing companionship services for aged or infirmed individuals unable to take care of themselves. The statute does not qualify the words 

‘‘any employee’’. In other words, it does not restrict the application of the exemption, 

for example, to ‘‘any employee of a person who receives such services or who is part 

of a household where a person received such services.’’ Rather, the statute conditions eligibility of the exemption upon the activities of the employee and not upon 

who hired the employee. 

Many other exemptions of the FLSA turn on the activities or duties of an employee. For example, the Section 13(a)(1) exemption for bona fide executive, administrative or professional employees is determined according to their activities or duties, among other requirements. Similarly, the exemption for agricultural employees 

in Section 13(a)(16) of the FLSA is determined according to the employee’s activities, not those of the employer. This basis of reviewing an employee’s activities to 

determine whether an employee is eligible for a particular exemption is contrasted 

with other exemptions that are employer-based. For example, one employer-based 

exemption is found in Section 7(i) of the FLSA and exempts a retail or service establishment exemption from overtime where the employer establishment satisfies the 

definitional requirements and pays its employees in accordance with the statutory 

requirements. Another is found in Section 13(a)(3) of the FLSA that exempts certain 

amusement or recreational establishments, organized camp, or religious or non-profit education conference center from the minimum wage and overtime requirements. 

In addition to effectuating the statutory language, the application of the companionship services exemption to employees of third-parties is consistent with Congressional intent. Several statements by Senators in the Congressional Record suggest 

that the companionship services exemption should apply to a person providing such 

services regardless of whether they were hired directly by the individual receiving 

such services or by a third-party retained by the individual to receive such services. 

One of the main reasons that these statements did not make such a distinction is 

because of concerns that working families would face increased costs for such services if the FLSA minimum wage and overtime requirements applied. Congressional 

committee reports also focus on the type of activities that are subject to the companionship services exemption. They too do not suggest that the exemption should be 

restricted based upon who employs the provider of eligible companionship services. 

It is noteworthy also that the committee reports state that the exemption would not 

apply to skilled nurses, it only applies to services provided in a private home and 

a boarding house where such services are provided and that operates as a business 

is not a private home. 

Finally, any suggestion that there is conflict in the Department’s regulations was 

resolved by the Supreme Court in Long Island Care at Home Ltd. v. Coke, No. 06-

593 (June 11, 2007). The Second Circuit Court of Appeals had relied on another regulation in Part 552. In particular, it looked at language in Section 552.3 to rationVerDate 0ct 09 2002 15:13 May 15, 2008 Jkt 000000 PO 00000 Frm 00025 Fmt 6633 Sfmt 6621 G:\DOCS\110TH\WP\110-69\38308.TXT HBUD1 PsN: DICK
22

alize that the companionship services exemption can not apply to employees of 

third-parties. However, such reliance was misplaced because Section 552.3, entitled 

‘‘[d]omestic service employment’’, defines the types of services that would constitute 

‘‘domestic service employment’’ as that term is used in the statute. The Court found 

that the language of Section 552.3 on the issue of third-party employment was not 

controlling, in part because the focus of that regulation is to define the scope or type 

of services that constitutes ‘‘domestic service employment’’ and to which the companionship services exemption applies. The Court ruled that Section 552.109(a) that applied the companionship services exemption to persons employed by third-parties 

was valid and controlling. 

In the time that I have remaining, I would offer a few observations about the proposed legislation, H.R. 3582. As I understand, its purpose is to apply the minimum 

wage and overtime labor standards of the FLSA to any provider of companionship 

services who is not employed on a ‘‘casual basis’’ without defining what is meant 

by ‘‘a casual basis’’. However, H.R. 3582 would go beyond addressing the Supreme 

Court’s decision in the Long Island Health Care v. Coke case, and would preclude 

the companionship services exemption from applying not only to an employee of a 

third-party but arguably also to many others who today are eligible for the exemption. In fact, H.R. 3582 would limit eligibility for the companionship services exemption only to the casual babysitter or provider of companionship services who: (1) is 

an irregular or intermittent employee; (2) is an individual whose vocation is not to 

provide babysitting or companionship services or is an individual not employed by 

a third-party employer but rather is employed by the family or household of the recipient, and (3) does not work more that a total of 20 hours a week providing babysitting or companionship service to one or more individuals. This bill would have 

the effect of applying the minimum wage and overtime requirements to many companionship providers who are employed by the household or family of the recipient. 

For example, if you perform casual babysitting or companionship services on a regular basis or do so for more than 20 hours a week, then you would not be eligible 

for the Section 13(a)(15) exemption even if your employer was the recipient of the 

services or a household family of the recipient. 

I would welcome the opportunity to address any questions that you may have. 

Thank you. 

Chairwoman WOOLSEY. Thank you. 

Dr. Seavey? 

STATEMENT OF DORIE SEAVEY, DIRECTOR OF POLICY 

RESEARCH, PARAPROFESSIONAL HEALTHCARE INSTITUTE 

Ms. SEAVEY. Chairwoman Woolsey, Congressman Wilson and 

members of the subcommittee, good morning. My name is Dorie 

Seavey. I am a labor economist and director of policy research at 

PHI, which is a national nonprofit based in the Bronx that works 

to help improve the lives of people who need home or residential 

care by improving the lives of the workers who provide that care. 

PHI stands firmly behind the Fair Home Health Care Act, and 

we have been asked to address the bill from a labor market perceptive with a focus on public policy development in the area of longterm care. 

I would like to touch on three points: the changed context for 

considering this bill, the problem of bad market signals and mixed 

policy messages and, finally, a word about costs. 

I would direct you to my written statement for in-depth analysis. 

The context for this bill could not be more different than the one 

that confronted lawmakers in 1974 at the time of the last set of 

FLSA amendments. Profound changes in the provision of homebased supports and services have essentially eclipsed the companionship services exemption. 

Significant changes have occurred in three areas: in the duties 

performed by many of the workers now classified as exempt; in the 

23

home care workforce itself, which now totals over 800,000, recently 

topping the size of the nursing home care workforce; and, finally, 

in the size and structure of the home care industry. 

There is no question that home care occupations are now bona 

fide forms of employment that generally are not performed on a 

casual basis. Nonetheless, home care workers need and deserve 

basic protections. The remuneration of this workforce is notoriously 

low with mean annual earnings of under $15,000. About a third of 

home care aides have no health insurance and, shockingly, nearly 

half of these aides live in households that receive some kind of public assistance, such as Medicaid or food and nutrition assistance. 

Propelled by demographic and other trends, home care is a rapidly expanding multibillion-dollar industry in which for-profits constitute the fastest-growing segment. There is also a booming consumer-directed market financed primarily by Medicaid in which 

consumers serve as the employer of record or as joint employers 

with agencies. 

It is my opinion that maintaining the companionship exemption 

in its current form contributes to significant structural problems in 

both the caregiver labor market and in workforce development for 

the homecare industry. Furthermore, the exemption works to subvert key policy goals established by the Federal Government concerning the development of the Nation’s long-term care system. 

From a labor market point of view, maintaining the current exemption in only one segment of the long-term care labor market 

creates distortions and artificial segmentation of caregiver labor 

markets across the entire system. Strikingly, this same work performed by an aide in a nursing home is unambiguously covered by 

minimum hour and wage protections. By supporting this kind of 

disparity, the exemption impedes the normal functioning of markets and serves to undermine the development of a stable, adequate workforce of paid caregivers to provide home and communitybased services. 

From a workforce development perspective, the exemption acts 

as a barrier to the overall status of this occupation relative to other 

low-wage jobs. The bottom line is it is basically impossible to construct any economic arguments as to why other domestic or homebased service jobs, such as maids, cooks, housekeepers and gardeners, should receive this basic protection, but home care workers 

should not. 

Lastly, from a Federal policy vantage point, not extending minimum compensation standards to these workers will only serve to 

send conflicting messages that undermine several important elements of Federal policy. To mention the biggest one, this exemption 

in its present form works to subvert the Federal Government’s encouragement of rebalancing. That is the expansion of home and 

community-based services relative to those provided in institutional 

settings, such as nursing homes. 

The costs of this bill need to be carefully and thoroughly explored 

on a state-by-state basis. However, several factors suggest that extending basic employment protections to non-live-in home care 

workers is unlikely to dramatically increase the nationwide cost of 

services or seriously disrupt service delivery systems, so long as 

steps are taken to adjust service delivery management accordingly. 

24

Four quick cost-related facts to keep in mind: Virtually, all home 

care workers currently are paid at least the Federal minimum 

wage. Live-in home care workers would continue to be exempt from 

overtime under the bill. The vast majority of home care workers do 

not work over 40 hours a week. And in at least 16 states and the 

District of Columbia, either all home care workers or significant 

subgroups of them are already eligible for overtime pay because 

state laws exceed the Federal standards. 

If the argument is that the exemption is needed to help make 

home care for the elderly and those with disabilities more affordable, then I would submit to you that the proper way to do this is 

not to artificially depress the market-based minimum cost of labor, 

but rather, in the case of publicly financed services, to make adjustments in state reimbursement rates and, in the case of private 

pay services, to use the tax code to subsidize the purchase of care. 

In closing, this bill offers Congress an historic opportunity to 

send three important economic and social signals: first, that home 

care workers should be on equal footing with respect to all other 

low-wage occupations; second, that within long-term care, the home 

care labor market should not have second-class status with respect 

to compensation and, therefore, with respect to its ability to attract 

and retain workers; and, finally, that Federal lawmakers can work 

together to coordinate rather than send conflicting messages about 

the direction of our Nation’s long-term care policy. 

Thank you. 

[The statement of Ms. Seavey follows:]

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Chairwoman WOOLSEY. Thank you. 

I think you heard the bells ringing, but we have time for the 

final witnesses, both of you, and then we are going to come back 

for questions, if you will stay with us. 

Mr. Dombi? 

STATEMENT OF WILLIAM DOMBI, VICE PRESIDENT FOR LAW, 

NATIONAL ASSOCIATION FOR HOME CARE 

Mr. DOMBI. Thank you, Chairman Woolsey and Ranking Member 

Wilson and the other members of the subcommittee. 

Thank you for the opportunity to come here today to express the 

views of the National Association for Home Care & Hospice. 

NAHC, as we call it, is a trade association. We represent the busiVerDate 0ct 09 2002 15:13 May 15, 2008 Jkt 000000 PO 00000 Frm 00043 Fmt 6633 Sfmt 6602 G:\DOCS\110TH\WP\110-69\38308.TXT HBUD1 PsN: DICK

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nesses that provide much of the care that we are speaking about 

today, home care aide services. 

Home care aide services takes on a different label under the Fair 

Labor Standards Act, companionship services. The National Association for Home Care & Hospice has long stood for the proposition 

that home care aides are the pillars of our long-term care delivery 

system. Without home care aides, such as Ms. Butler, it would not 

exist. It would have no chance of success. Society does not give 

them the level of respect and support that they deserve based on 

their dedication and their commitment to caring for individuals 

that most of us avoid even spending time with—the elderly, the 

disabled, the individuals who are shut into their homes and shut 

out of society’s eyes. 

We agree with the goals of this legislation, and the goals of this 

legislation are to improve the profession of home care aides, stabilize it financially so that it becomes something that people aspire 

to, dedicate themselves to, continue to work in with a living wage. 

From a business standpoint, the reasons are very obvious. A stable 

workforce makes for a stable business, and home care is a workforce-related business. 

But while we agree with the goals, we think that this action and 

this bill actually send things going in the wrong direction. It sends 

things going in the wrong direction because, as Dr. Seavey mentioned, market forces are at play here, and there is a big difference 

in home care and hospice than there is in many of the other market-driven economies. 

We do not control the price. We do not set the price. The price 

is set by Congress on occasion, Federal administrative agencies and 

state legislatures, governors as well as state administrative agencies. When you cannot control the price and the price does not 

change and the providers of services are not reimbursed additional 

monies to cover additional costs, the only choice they have is cost 

avoidance. 

And while the sky has not fallen in Michigan, what has happened is limited, if nonexistent, overtime services provided by home 

care aides as a cost-avoidance measure. The only option that was 

available to home care providers was to discontinue employing 

home care aides beyond 40 hours. There was no further increase 

in reimbursement. In fact, in Michigan, under the state Medicaid 

programs the fights have been over decreases in payment rates. 

When we look at the cost of this legislation, it is a cost that this 

committee has to seriously consider. My constituency would embrace any change that allows them to pay a fair wage with overtime compensation and full employee benefits to home care aides 

because the recruitment and retention costs, the nightmares of 

going through background checks for workers who come in with felony-level backgrounds, is just an unacceptable way to operate a 

long-term care system. 

We do not know what the exact costs would be, but I will give 

you a few numbers. Today, $15 billion a year is spent under the 

Medicare program for home health services. About 25 percent of 

that are home health aide services. In hospice, $9 billion a year 

spent under Medicare with about 20 percent home health aide 

services. In excess of $20 billion a year is spent in state Medicaid 

41

programs on personal care supports. And then we have many more 

programs in addition to that from the Administration on Aging 

through TRICARE and even the Housing and Urban Development 

programs for home care services. 

These are all Federal and state-funded programs, and there are 

local home care programs, like in the City of New York where the 

City of New York estimated that the cost of overtime compensation 

under this bill, in its evaluation of the Supreme Court case, would 

be $100 million in New York City alone. 

As I stated earlier, the pillars of home care deserve your support, 

but they cannot get it in isolation with all the factors that are 

there. So, as an alternative to moving forward with this legislation, 

we would recommend this committee take a broad-based approach, 

look beyond just overtime compensation—minimum wage is not an 

issue. These workers get minimum wage—and, instead, I offer five 

different areas which this committee should address that will ultimately implicate compensation and benefits. 

Number one, mandate all Federal and state programs that finance home care aide services to reform payment rates to accommodate increased costs of improved and appropriate compensation. 

Two, require all Federal and state home care programs to provide the necessary financial support for a basic health insurance 

plan. This Congress is debating SCHIP at this point in time. We 

are talking of 200 versus 300 percent of the poverty level, but these 

individuals will not be covered through any SCHIP amendments 

that are under consideration today. Health insurance for health 

care workers should seem to be a minimum right. 

Number three, provide support for programs that establish career ladder opportunities for home care aides, including scholarships and grants for higher education and training. We have that 

going at the National Association for Home Care & Hospice now, 

but our few dollars that we can offer only goes a short way to 

bringing individuals who start as home care aides who would like 

to be LPNs, RNs and other health care workers. 

Number four, establish economical and efficient background 

check systems to allow for expedited screening of applicants for 

home care aide employment. In Wisconsin, 30 percent of applicants 

for home care aide jobs were found to have felony-level backgrounds. We do not want them in the system, but we do not want 

to keep individuals like Ms. Butler waiting in the wings to come 

into the delivery system as well. 

And last, require consistent employee protections across all forms 

of home care aide employment, including Workers’ Compensation, 

Unemployment Compensation, OSHA job safety standards and 

worker qualifications. The trend across the country is to bring in 

individual providers without that protection. 

So thank you for your time and your patience. 

[The statement of Mr. Dombi follows:]

Prepared Statement of William A. Dombi, Vice President for Law, on Behalf 

of the National Association for Home Care & Hospice, Inc. 

Thank you for the opportunity to present testimony regarding H.R. 3582. My 

name is William A. Dombi, Vice President for Law at the National Association for 

Home Care & Hospice, Inc, (NAHC). In Washington, D.C. NAHC is a trade association representing the interests of home health agencies, home care organizations, 

42

and hospices throughout the country. Our membership includes entities of all sizes 

and types including not-for profit and proprietary organizations. These providers of 

care are freestanding companies, government-based, or part of a health system. All 

told, NAHC members serve over 5 million of the Nation’s elderly and disabled citizens with personal and skilled care that enables these individuals to maximize functioning and stay safely in their own homes. 

H.R. 3582 is of great interest to the home care community as the providers of 

home care services employ tens of thousands of workers that could be impacted by 

the proposed revision to the ‘‘companionship services’’ exemption under the Fair 

Labor Standards Act of 1974 (FLSA). In home care, the worker who provides services that would be considered ‘‘companionship services’’ generally works under the 

title of home health aide, home care aide, or personal care attendant. These workers 

are the pillars of support for a growing community based long term care system that 

our Nation needs to respond to the graying of America. 

H.R. 3582 follows on the heels of a recent decision of the U.S. Supreme Court in 

LI Care at Home v. Coke where a unanimous Court upheld the validity of a 30 year 

old regulation of the US Department of Labor that exempted individuals who are 

employed by third parties to provide companionship services from the protections 

of the FLSA with respect to overtime compensation. Ms. Coke argued unsuccessfully 

that the exemption applies only when the worker is directly employed by the person 

receiving care. While H.R. 3582 purports to reverse the Court’s decision, it actually 

would limit the FLSA exemption even in situations where the worker is directly employed by the person receiving care. 

The proposed legislation represents a well-intentioned effort to provide support for 

individuals working in an undervalued job. However, it is a piecemeal action that 

will not only fail to solve the important concerns expressed by the home care aide 

workforce, but will serve to compound their problems. Instead, NAHC calls for a 

comprehensive, broad-based strategic plan that integrates action to address worker 

compensation, access to health insurance, competencies and training, career opportunities, and funding. In the absence of that comprehensive effort, HR 3582 will 

trigger predictable consequences that naturally develop when health care providers 

are encumbered with added costs without the essential financial support to meet 

those increased obligations. 

The impact of the proposed legislation must be understood in a very practical context. Most funding for home care services comes from Federal and state programs 

such as Medicaid, Medicare, the Administration on Aging, and TRICARE. Under 

these programs, the employer of home care aides has little or no control over the 

price of services and can only act to affect the costs of care. As a result, the unfunded cost increases that evolve from this legislation will lead the employer/home 

care agency to control costs through such steps as eliminating overtime work, reducing base compensation rates to minimum wage, and dropping any employee benefit 

programs. This foreseeable reaction is unlike those that are only speculative in a 

market driven economy where the seller of services has the option of raising prices 

to increase revenue to offset the increased compensation costs. These are real consequences when the health care provider must operate in a system of funding that 

is controlled by Federal and state health care programs. 

Consumers of home care aide services also will suffer unintended consequences. 

Limiting hours of work for the home care aide will disrupt continuity of care as multiple caregivers will be assigned to an individual to avoid unfunded overtime compensation. The anticipated increase in employee turnover when workers cannot get 

enough work hours will bring consumer dissatisfaction as every day different caregivers arrive on the scene. 

These issues are all solvable, but not through an isolated action that addresses 

only the matter of worker compensation. NAHC sincerely recommends that the 

Committee re-direct its efforts to bring about the broad-based solution that is needed to protect both the worker and the consumer of care. 

Who receives companionship services 

Companionship services, otherwise known in health care as home care aide and 

personal care attendant service, are provided to millions of Medicare, Medicaid, 

TRICARE, and private pay recipients of care. They are young and old, permanently 

disabled and chronically ill. In 2000, the U.S. Department of Health and Human 

Services reports that the number of individuals receiving home care services was 

7,178,964. 

In 2006, Medicare expenditures for home health services provided to 3.1 million 

elderly and disabled, homebound beneficiaries with expenditures totaling $13.2 billion. Medicaid expenditures for home care in 2000 reached $24.3 billion, of which 

$11.6 billion was spent on personal support services. Since 2000, Medicaid spending 

43

1Occupational Employment Statistics, U.S. Department of Labor, Bureau of Labor Statistics,Occupational Employment and Wages, May 2005 (www.bls.gov/oes/current/oes311011.html). 

Internet search 12/11/06. 2 Centers for Medicare & Medicaid Services, Center for Information Systems, Health Standards and Quality Bureau, November 2006. 

on home care has grown exponentially with a rebalancing of spending away from 

institutional care and into community-based services. Medicaid home care recipients 

are of all ages, from infant to very advanced age, all with one common characteristic—they must rely on others to safely stay at home. 

The 1974 amendment to the Fair Labor Standards Act (FLSA) that established 

the ‘‘companionship services’’ exemption at issue in this matter is a unique action 

through which Congress offered protection to a class of consumers rather than employees. The central feature of the exemption is to provide a cost protection for the 

elderly and the infirm who require personal care and other support services, known 

as companionship services, to remain in their communities and in their own homes. 

From the time of the 1974 amendment through today, all branches of the Federal 

Government have recognized the importance of providing community based care to 

the elderly, infirm, and disabled. For example, in 1980, Congress enacted amendments to the Medicare program to eliminate coinsurance requirements under the 

home health benefit in order to remove any barriers to care in the home that might 

lead to more costly and less humane institutional care. Section 930(h) of the ‘‘Medicare and Medicaid Amendments of 1980,’’ P.L. 96-499, codified at 42 USC 

1395l(b)(2). 

More recently, with the enactment of the Americans with Disabilities Act of 1990, 

Congress ensured that individuals with disabilities be afforded the opportunity to 

receive public services and programs in the most integrated setting appropriate to 

their needs. 42 USC 12101fff. The right of disabled individuals to community-based 

care under the ADA and its implementing regulations was affirmed by this Court 

in Olmstead v L.C., 527 US 581 (1999). 

The Executive Branch of the United States government also has weighed in heavily in favor of home care. The ‘‘New Freedom Initiative’’ was announced by President Bush on February 1, 2001, followed by Executive Order 13217, CommunityBased Alternatives for People with Disabilities (June 18, 2001). 

The United States Department of Health and Human Service (HHS), which manages many of the public home care programs, set out its implementation of the Executive Order establishing civil rights compliance activities that facilitate community integration in ‘‘Delivering on the Promise, HHS’ Report to the President on Executive Order 13217.’’ www.hhs.gov/newfreedom/eo13217.html.) The HHS initiative 

is a nationwide effort to remove barriers to community living for people of all ages 

with disabilities and long term illness. 

Profile of the home care aide/companion 

The U.S. Department of Labor, Bureau of Labor Statistics, reports that 663,280 

workers provide companionship services as home health aides and personal care 

aides.1 Among the employers of these workers are 8,728 Medicare certified home 

health agencies throughout the country.2

The bald statistics tell only a minor part of the story about home care aides. In 

the community of home care, aides are considered heroes. Most often, it is the aide 

who is the reason the patient can stay at home safely to receive needed health care 

services. The home care aide is generally considered to have the toughest job in 

home care as she must respond to a myriad of personal care needs of her patients 

ranging from simple bathing to managing incontinent, nonambulatory elderly patients with Alzheimer’s Disease. Aides are task oriented, schedule regimented, caring people who become the equivalent of temporary family members providing essential caregiving with a tender touch. They care for people who are afflicted with 

chronic illness or who are recovering from an acute illness or injury. Aides are also 

significant team members in hospice care, providing special care to individuals at 

the end of life. 

The home care aide may care for one individual or provide services on a shift 

basis to several. Some provide visit oriented services that occur several times per 

week per patient for one to two hours a visit. Versatility and dependability are hallmarks of the home care aide. Most are women, but men also participate in this 

work. 

Home care aides are deserving of respect and admiration. They also are well deserving of society’s support and recognition for their great contributions. They are 

truly heroes of home care. 

44

The profile of home care financing 

The provision of essential care by home care aides happens only with the significant financial support of Federal and state health care and personal care service 

programs. It must be recognized that the proposed changes to the FLSA, designed 

to guarantee home care aides overtime compensation when applicable, will increase 

the costs of those important programs. In addition, the nature, structure, and operation of these programs demonstrates that the increased costs occurring through a 

new overtime compensation obligation will not lead to near term changes in reimbursement rates to reflect and reimburse employers of home care aides for that new 

cost. In fact, the experiences with state Medicaid programs demonstrate that payment rate changes occur only after access to care problems reach a crisis level. 

Medicare pays for home health services through a prospective payment system, 

42 USC §1395fff; 42 CFR §484.200 (HHPPS). The HHPPS payment rate is adjusted 

annually through the application of a ‘‘market basket index,’’ a sort of inflation factor. 42 USC §1395fff(b)(3)(B); 42 CFR §484.225. 

However, the market basket index formula and the database utilized to apply that 

formula are not designed to address sudden cost changes without unreasonable 

delay. For example, the database utilized for the inflation factor for the calendar 

year 2005 proposed rates includes wages and salary data from 2000. 69 F.R. 31248 

(June 2, 2004). 

Compounding the problems with the Medicare market basket index update is the 

use of a wage index for geographic variation in payment rates. 42 USC 

§1395fff(b)(4)(A)(ii)i; 42 CFR §484.210(c). 

However, changes in home care aide wages will not affect payment rates because 

the home health wage index is based upon hospital services wage data. As a result, 

providers of companionship services will experience increased cost and unaffected 

Medicare payment rates. 

Medicaid payment systems are even less predictable than the Medicare HHPPS. 

States participating in Medicaid are required to establish payment rates sufficient 

to enlist enough care providers to secure services at a level of access comparable 

to the non-Medicaid patient population. 42 USC §1396a(a)(30)(A); 42 CFR §447.204. 

Typically, state Medicaid programs adjust payment rates only after individuals have 

lost access to necessary care. See, Arkansas Medical Society, Inc. v. Reynolds, 6 F.3d 

519 (8th Cir. 1993); Orthopedic Hospital v. Belshe, 103 F.3d 1491 (9th Cir. 1997). 

In Ball, et al v. Bledess, et al, the District Court held that the Arizona Medicaid 

program home care payment rates violated 42 USC §1396a(a)(30)(A). CIV 00-

0067TUC-EHC (D. AZ. 8/13/2004). The court noted that despite multiple studies and 

reports since 1998 indicating the loss of access to care triggered by inadequate payment rates, the state did not respond. 

Many of the Medicaid home care programs are designed around a standard of cost 

effectiveness. These programs, otherwise known as home and community-based care 

waivers, exist only to the extent that the cost of care is less than the cost of placement in an institutional setting. 42 USC §1396h(c) The increase in costs triggered 

by new overtime compensation obligations threatens the viability of these waiver 

programs and will block home and community-based care options for currently 

served individuals. 

TRICARE, the health services program for over eight million military dependents 

and retirees will also be adversely impacted. Its basic home health services program 

is built on the Medicare payment model referenced above. 32 CFR Part 199. In addition, its Extended Home Care Benefit is founded on cost-effectiveness principles 

comparable to the Medicaid waiver programs discussed herein. 69 F.R. 44942 (July 

28, 2004). 

Why is the financing of home care relevant? 

The financing system for home care can be boiled down to two basic concepts: (1) 

the provider of care does not control the price of services; and (2) the provider of 

care has limited control over the cost of care. Addressing the pressing needs of home 

care aides in a piecemeal fashion, focusing solely on overtime compensation, compounds rather than solves the problems faced by home care aides. 

As the preceding discussion indicates, the price of care is controlled by Federal 

and state programs that purchase the care from the providers of home care on behalf of participants in the programs. At best, these programs are slow to act to reflect cost changes in payment rates. At worst, there is no reaction to increase service 

costs leading to serious access problems. 

With the inability to respond to increased costs through price increases, the employer of home care aides has no alternative but to take steps to reduce costs. Some 

costs cannot be avoided as they are creatures of regulatory standards designed to 

ensure quality of care. For example, Medicare home health agencies must meet rigVerDate 0ct 09 2002 15:13 May 15, 2008 Jkt 000000 PO 00000 Frm 00048 Fmt 6633 Sfmt 6621 G:\DOCS\110TH\WP\110-69\38308.TXT HBUD1 PsN: DICK
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orous standards for participation that include training and competency standards 

for home health aide service, 42 CFR 484.36. In addition, most states have provider 

licensing standards with many requiring full criminal background checks on all 

caregiving staff. In addition, the home care agency must manage staff recruitment, 

scheduling, and travel costs to patients’ homes. As with any employer, the home 

care agency also must cover the costs of Workers’ Compensation, Unemployment 

Compensation, and the Social Security tax. 

These employer obligations leave few options for the home care agency to control 

costs and respond to an increase in costs such as overtime compensation. In the absence of immediate changes in payment rates by Federal and state programs, the 

home care agency is left with two cost control options and one cost avoidance option. 

In terms of cost control, the home care agency can reduce the basic hourly wage 

of home care aides or eliminate or reduce any available employee benefits such as 

health insurance. Currently, the employee benefits are, at best, minimal because of 

currently inadequate payment rates. 

The cost avoidance option is for the home care agency to limit the hours worked 

by the home care aides, capping those hours at 40 per week to stay under any overtime compensation obligation. 

Who gains from this dynamic—no one! The patient loses because of the loss of 

continuity in caregivers. The home care agency loses because of higher recruitment 

costs and staff scheduling costs to reference just a few. The worker loses because 

she is subject to capped compensation with no alternative but to find additional supplemental employment. 

Are there other risks with the piecemeal approach? 

The proposed legislation purports to address compensation protections for home 

care aides regardless as to whether they are employed by the person receiving the 

care or by an third party. As Justice Breyer pointed out during the oral argument 

in Coke v. LI Care at Home, the argument advanced by Ms. Coke would have the 

unacceptable consequence of discriminating against individuals who did not have 

the faculties or means to directly employ the home care aide by creating an overtime 

compensation obligation for individuals that needed to acquire care through a third 

party. As such, NAHC is very supportive of the proposal in terms of its inclusion 

of all home care aides within the minimum wage and overtime compensation protection except those that truly work on a casual basis. However, it can reasonably be 

expected that consumers and workers in the direct employment situation may be 

tempted by the opportunity to ‘‘go underground’’ in their arrangement to avoid the 

obligations, scrutiny, and reporting responsibilities that come with a formal, compliant employment relationship. 

In such circumstances, both the consumer and the home care aide are losers once 

again. The consumer loses the quality of care protections designed into many Federal and state laws. Oversight, worker screening and training, and the ready availability of substitute workers is sacrificed. For the home care aides, protections such 

as Workers’ Compensation, Unemployment Compensation, and Social Security contributions are lost. 

These risks can only be addressed through a comprehensive strategy to enhance 

the status of home care aides. Focusing on the isolated overtime compensation concern is not a step toward that strategy. Instead, it is a step backward unless it is 

part of a plan to include consideration of care financing, health insurance protection, 

and career building opportunities. 

A broad-based home care aide protection plan 

To insure unintended consequences triggered by this proposed legislation, NAHC 

recommends that Congress develop a broad-based strategic plan that provides a 

comprehensive approach to the protection of home care aides. That comprehensive 

protection is needed for both the home care aide and the individuals under their 

care. That plan should include, at a minimum, the following: 

1. Mandates for all Federal and state programs that finance home care aide services to reform payment rates to accommodate increased costs of improved compensation. 

2. Requiring all Federal and state home care programs to provide the necessary 

financial support for a basic health insurance plan for home care aides. 

3. Providing support for programs that establish career ladder opportunities for 

home care aides including scholarships and grants for higher education and training. 

4. Establishing economical and efficient background check systems to allow for expedited screening of applicants for home care aide employment. 

46

5. Requiring consistent employee protections across all forms of home care aide 

employment such as Workers’ Compensation, Unemployment Compensation, OSHA 

job safety standards, and worker qualifications. 

Comments on the language of H.R. 3582

NAHC recommends that H.R. 3582 move forward only as part of a comprehensive 

plan to address home care aide protections and employment. However, as it is currently structured, the language is confusing and ambiguous. 

Specifically, it is unclear whether proposed subparagraphs (A) and (B) are intended to establish the definition of ‘‘casual basis’’ or add restrictions on the applicability of the ‘‘casual basis’’ exemption. For example, must the companionship service 

be both ‘‘casual basis’’ work and ‘‘irregular or intermittent’’? Alternatively, is casual 

basis defined as work that is irregular or intermittent? 

Similarly, the phrase ‘‘or an individual employed by an employer or agency other 

than the family * * *,’’ may be intended as a wholesale exclusion from the companionship services exemption or one applicable when involving services on a casual 

basis that are irregular or intermittent. 

With respect to subparagraph (B), it appears that the 20 hour per week standard 

may be either an additional qualification on the ‘‘casual basis’’ standard, an additional qualification on the ‘‘irregular or intermittent’’ standard, or a definition of one 

or both of those standards. 

Finally, it is ambiguous as to which employer under the ‘‘20 hour in the aggregate’’ standard has the responsibility for overtime compensation. Is it the employer 

who is employing the worker for the hours that exceed the aggregate of 40 hours 

that is responsible for overtime compensation or are the multiple employers responsible only when their employment itself exceeds 40 hours? 

NAHC is readily available to work with the Committee to clear up this confusion 

and these ambiguities. 

Conclusion 

Home care aides are essential caregivers of the elderly and the disabled. They deserve comprehensive worker protections. However, by addressing the single concern 

of the application of the FLSA companionship services exemption to the exclusion 

of the interrelated issues of care financing, health insurance coverage, career support, and other matters, H.R. 3582 is a well intentioned effort that will have unintended adverse consequences for both consumers of home care aide services and the 

home care aides. NAHC recommends a broad-based strategic legislative plan to address these interrelated concerns to achieve the goals of H.R. 3582. 

Chairwoman WOOLSEY. Thank you, Mr. Dombi. 

Mr. Claypool? 

STATEMENT OF HENRY CLAYPOOL, POLICY DIRECTOR, 

INDEPENDENCE CARE SYSTEM 

Mr. CLAYPOOL. Chairwoman Woolsey, Ranking Member Wilson 

and members of the subcommittee, good morning. I am Henry 

Claypool, the policy director of Independence Care System, a nonprofit managed long-term care plan based in New York City, serving more than 1,200 people with disabilities living in their homes. 

Thank you for inviting me to testify today. 

I would like to give you ICS’s perspective on the Fair Home 

Health Act as both an organization that pays for the services of direct-care workers and as an advocate for services for people with 

disabilities. My comments are also informed by my own personal 

experience. I am a former Medicaid beneficiary, and I continue to 

rely on the supports provided by direct-care workers. 

We support the enactment of the Fair Home Health Act, and we 

believe that there are three major policy challenges that this legislation seeks to address. 

One, antiquated Department of Labor rules must be readjusted 

to address the current shortage of direct care workers. Competition 

for workers to take jobs in the service sector is fierce, and it makes 

47

no sense to continue to put direct-care jobs at a comparative disadvantage by allowing the erroneous categorization of workers as 

companions to persist. 

Two, Federal labor policies should be conducive to delivering 

high-quality services. It can be difficult to find someone who is capable, competent and interested in helping with often intimate personal needs like dressing, using the bathroom, and eating. The result is that many people who rely on community-based services 

struggle with quality issues on a daily basis. To assure quality, all 

workers who provide noncasual, non-live-in long term services 

should be fully protected by FLSA. 

Three, the current exemptions for some FLSA protections for direct-care workers should be eliminated or at least narrowed so that 

these protections apply equally to direct-care workers across all 

long-term services settings. 

For the disability community, the number one civil rights issue 

in this country is the need to expand access to community longterm services so that Medicaid beneficiaries who need these services are not forced to be isolated in a nursing home in order to receive these services. When community-based direct-care workers 

are exempt from wage and hour protections, it exacerbates the institutional bias by making direct-care jobs in nursing homes more 

attractive than comparable jobs in community settings. 

As the subcommittee moves forward with its consideration of this 

important legislation, we make the following recommendations. 

Consult with the Energy and Commerce Committee to fully consider the ramifications for the Medicaid program. Medicaid is an 

extremely complex program, and the Energy and Commerce Committee has accrued very significant expertise and may prove valuable to the subcommittee. 

Redefine the live-in exemption in a way that provides narrow exemptions from FLSA wage and hour protections. While ICS believes that Department of Labor rules have been misinterpreted to 

exempt too many workers from FLSA standards, we do acknowledge that some exemptions are appropriate. Careful consideration 

should be given to reclassifying certain direct-care workers as livein. This step should be taken, however, after consulting with 

groups that represent consumers and independent providers. 

In closing, I would like to thank the subcommittee for its efforts 

to protect direct-care workers and for considering how to ensure 

that Medicaid beneficiaries who depend on community-based longterm services are not adversely harmed. ICS looks forward to serving as a resource to you as you continue to consider this important 

issue, and we urge the Congress to enact the Fair Home Health Act 

into law. I look forward to answering any questions you may have. 

[The statement of Mr. Claypool follows:]

Prepared Statement of Henry Claypool, Policy Director, Independence 

Care System 

Chairwoman Woolsey, Congressman Wilson, and Members of the Subcommittee, 

Good morning. I am Henry Claypool, the Policy Director of Independence Care System (ICS), a nonprofit managed long-term care plan based in New York City, serving more than 1,200 people with disabilities living in their homes. 

Thank you for inviting me to testify today. I would like to give you ICS’ perspective on the Fair Home Health Act (H.R. 3582) as both an organization that pays 

for the services of direct-care workers and as an advocate for services for people 

48

with disabilities. My comments are also informed by my own personal experience. 

I am a former Medicaid beneficiary and I continue to rely on supports provided by 

direct-care workers. 

We support enactment of the Fair Home Health Act and we believe that there 

are three major policy challenges that this legislation seeks to address: 

One, Antiquated Department of Labor rules must be re-adjusted to address the 

current shortage of direct care workers. 

Competition for workers to take jobs in the service sector is fierce and it makes 

no sense to continue to put direct-care jobs at a comparative disadvantage by allowing the erroneous categorization of workers as ‘‘companions’’ to persist. 

Two, Federal labor policies should be conducive to delivering high-quality services. 

It can be difficult to find someone who is capable, competent and interested in 

helping with often intimate personal needs like dressing, using the bathroom, and 

eating. The result is that many people who rely on community-based services struggle with quality issues on a daily basis. To assure quality, all workers who provide 

non-casual, non-livein long term services should be protected by FLSA. 

Three, The current exemption from some FLSA protections for home care workers 

should be eliminated or at least narrowed, so that these protections apply equally 

to direct-care workers across all long-term care settings. 

For the disability community, the number one civil rights issue in this country 

is the need to expand access to community long-term services so that Medicaid beneficiaries who need these services are not forced to be isolated in a nursing home in 

order to receive these services. When community-based direct-care workers are exempted from wage and hour protections, it exacerbates the institutional bias by 

making direct-care jobs in nursing homes more attractive than comparable jobs in 

community settings. 

As the Subcommittee moves forward with its consideration of this important legislation, we make the following recommendations: 

Consult with the Energy and Commerce Committee to consider fully the ramifications for the Medicaid program; 

Medicaid is an extremely complex program and the Energy and Commerce Committee has accrued very significant expertise that may prove valuable to the Subcommittee; 

Redefine the live-in exemption in a way that provides narrow exemptions from 

FLSA’s hour and wage protections. 

While ICS believes that Department of Labor rules have been misinterpreted to 

exempt too many workers from FLSA standards, we do acknowledge some exemptions are appropriate. Careful consideration should be given to reclassifying certain 

direct-care workers as ‘‘live-in’’ per diem workers whose per diem pay must be 

equivalent to at least 14 hours of regular pay. This step should be taken, however, 

after consulting with groups that represent consumers and independent providers. 

In closing, I would like to thank the Subcommittee for its efforts to protect directcare workers and for considering how to ensure that Medicaid beneficiaries who depend on community-based long-term services are not inadvertently harmed. ICS 

looks forward to serving as a resource to you as you continue to consider these important issues. We urge the Congress to enact the Fair Home Health Act into law. 

I look forward to answering any questions that you may have. 

Chairwoman WOOLSEY. Thank you. 

We will be back. 

[Recess.] 

Chairwoman WOOLSEY. I was going to have my committee members ask their questions first, but I am here and they are not. So 

I want to thank you all for your testimony. I am going to recognize 

myself for 5 minutes, and then I will yield to Mr. Wilson, and then 

others will be here by then. 

We are going to have a whole series of what we call—excuse me, 

Republicans—nuisance votes. So we will be running back and forth. 

But they are 15-minute votes, and they will not be held open very 

long. 

So, again, thank you, and I recognize myself for 5 minutes. 

Mr. Dombi, I have a question about these third-party agencies. 

Are they not for-profit agencies? 

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Mr. DOMBI. Home care agencies are both not for profit and for 

profit. Some are government-based agencies. The largest home care 

agency in South Carolina, for example, is a Department of Health 

and Environmental Control, which is a government agency that 

runs the health department and such as well. 

Chairwoman WOOLSEY. Okay. When they pay somebody like Ms. Butler, say, $9.00 an hour, what do they charge the client? I mean, 

where is the profit, I mean, the overhead margin? 

Mr. DOMBI. Yes. In most of the instances, they are not charging 

the client. Instead, they are receiving reimbursement from a public 

program like Medicaid. So they are getting a fee schedule rate. By 

and large, the rates vary tremendously across the country. In a situation normally for what we call the home and community-based 

waiver programs, we see hourly payment rates to the home care 

providers as low as $9.63 and as high as the low $20s. Within that 

range, you know, you have a median probably in the $15 range. 

Chairwoman WOOLSEY. And so the health care worker takes the 

whole amount home, I mean, other than taxes, et cetera? 

Mr. DOMBI. No, the health care worker takes whatever wages 

that they get home, and the health care provider then finances 

other aspects of the delivery of services. For example, in most of 

the states when they pay an hourly rate for the home care aidepersonal care attendant they do not pay for the travel time, yet 

that is an hour worked for the worker that the employer has to 

pay. They do not separately pay for training. They do not separately pay for criminal background checks. They do not pay for any 

of the other overhead aspects that are there in the delivery of the 

service. They pay that as part of the fee schedule rate to the provider. 

Chairwoman WOOLSEY. Okay. Thank you. 

Now, Ms. Butler, I would like to ask you a question about something Mr. Dombi did say. He said that what would happen if we 

passed this legislation would be that you would no longer be privileged to work over a 40-hour week without getting overtime. Right 

now, you can be forced to work over a 40-hour week without overtime. Is that all right? I mean, you are okay not working over 40 

hours, aren’t you? 

Ms. BUTLER. Well, the overtime will mean to me—it will be 

$1,500 more a year. For some people, it will be a drop in the bucket, but, for me, it will be quite a lot of money because of the cost 

of living the way it is in New York. But I guess he is right. Some 

agencies will try to get the chance to cut down your hours. Then 

it will be very bad. But, at the same time, they cannot, not with 

the sick people the way they are. 

Chairwoman WOOLSEY. So you see this, rather than ensuring 

that then the other part of the day would be paid, somebody else 

would come in and earn straight time. 

Ms. BUTLER. But then that will be very disturbing to the patent 

because, see, we take into consideration the emotional problem of 

the elderly having people walk into their home every certain 

amount of hours so they will not pay the overtime. So, you know, 

how are we benefiting these people as it is? 

Chairwoman WOOLSEY. Right. I appreciate that very, very much. 

Good input. 

50

So, Mr. Becker, talk to us about the patient or the elderly person 

and what the difference between what quality care and turnover 

care means to them. 

Mr. BECKER. Well, I think the important thing to recognize here 

in terms of the quality of care is that the most important factor determining quality of care is whether there is an available caregiver. 

And the greatest threat to the quality of care here is the threat 

that there will not be enough caregivers available to provide the 

care, and to keep these workers in the margin of the economy, to 

categorize them as less worthy than all the employees who are covered by the act, is only furthering that threat. 

In terms of the overtime question, when the act was passed in 

1938 and it has been extended numerous times, including in 1974, 

this argument has always been made, that protecting workers is 

actually going to turn around and harm workers because their 

hours are going to be cut and their wages are going to be cut. So 

this is really not an argument against closing this loophole. This 

is an argument against the principles of the Fair Labor Standards 

Act itself. 

Overwork is generally a problem in the health care industry—in 

hospitals, in nursing homes, in home care. It is generally not desirable to have people working long hours in this industry in particular, but in all industries. That is the philosophy of the Fair 

Labor Standards Act. The statistics show that very few clients receive more than 40 hours of care per week. So to have that care 

provided by individuals who do not work long hours would not lead 

to significant problems in terms of the discontinuity of care. 

So we think that extending the act, including the overtime provisions, will have a positive effect on the quality of care. 

Chairwoman WOOLSEY. Thank you very much. 

Mr. Wilson? 

Mr. WILSON. Again, Ms. Butler, thank you for your service. 

In our home state of South Carolina, it is very frequent in obituaries to see the companion care personnel listed as family members, which is truly an indication of the deep affection that the 

family develops with people in your profession. 

As we are facing these very important issues today, Mr. Robinson, as drafted, do you believe that H.R. 3582 goes beyond the 

scope of the issue decided in Long Island Care and the questions 

raised under Department of Labor regulations at issue in that 

case? In what way do you believe this bill goes beyond the Long 

Island Care? 

Mr. ROBINSON. Thank you, Congressman Wilson. 

Yes, I do believe it goes beyond the Supreme Court’s decision. At 

issue there was the validity of the exemption applying to caregivers 

employed by third parties. The way this legislation is drafted, it 

goes beyond that because it would deny application of that exemption to a babysitter, to a companionship provider who works more 

than 20 hours. 

It also has a provision in there that sort of compounds, if you 

will, layers the terms ‘‘intermittent’’ and ‘‘irregular’’ in the statutory provision that already has the term ‘‘casual basis’’ in it. So it 

sort of is, I might say, fraught with confusion in that sense because 

51

you are layering on terms that are not defined, even though the 

‘‘casual basis’’ is, in the regulations. 

So it could impact the babysitter that was not at issue as well 

in the Supreme Court case. 

Mr. WILSON. Mr. Dombi, you really have the perspective of an attorney, also being real world with the association, and in that context, were H.R. 3582 to become law, what do you predict would be 

the immediate consequence for companion care workers, the clients 

they serve, employers and government agencies? And you have already spoken about something Mr. Becker mentioned, and that is 

setting the price. Who is doing that? What do you predict the longterm consequences to be? 

Mr. DOMBI. Well, as much as I have a crystal ball, I would base 

it on some experiences we have had, which is when a new cost 

comes to the employer, in this case the home care provider, and 

that cost is not covered by the payor of that service, Medicaid or 

Medicare, whatever, they then get into a cost-avoidance mode, and 

with respect to home care aides, I think they are offered three options and a combination of them that they can take on an immediate basis because experiences also say that the payment MOP 

systems do not respond immediately and may never respond at all. 

The three choices that they would have would be to avoid overtime compensation obligations by controlling the number of hours 

worked, and some workers might find that beneficial. They can reduce the base wage that is paid to that worker so that they could 

accommodate then an overtime on that, but I do not think anybody 

is real happy with taking $10 an hour and reducing it to $7.50 so 

you can afford to pay overtime when that occurs. Or they could dismantle or in some way diminish the limited benefits that are their 

employee benefits that might be available, whether they are a limited health plan or pension benefits. 

Those are truly the only options that are available in a costavoidance mode that occurs, none of which, in my mind, end up 

benefiting either the consumer or the worker at that point and, certainly, do not benefit the employer because the employer then is 

probably out there having to recruit more staff because staff leave 

as a result of those kinds of changes. 

Mr. WILSON. And, Mr. Robinson, you had cited the 20-hour-perweek provision in Subsection B of H.R. 3582. So, again, could you 

restate your concerns about that? 

Mr. ROBINSON. Yes, sir. The way this statute is drafted, it could 

exclude from the exemption—in other words, overtime would apply 

to anybody, whether they are hired by a third-party employer or 

directly by the recipient of the services, if they provide more than 

20 hours a week. That could be the babysitter, for example, the 14-

year-old. Child labor regs limit the number of jobs you can perform. 

You can have a babysitter who performs more than 20 hours a 

week who could be impacted by this bill. You could have the person 

who works directly for the recipient of the services, if they work 

more than 20 hours a week, would be impacted by this bill. So it 

has far-reaching consequences beyond just what was addressed in 

the Long Island v. Coke case. 

Mr. WILSON. Thank you all. 

Chairwoman WOOLSEY. Mr. Bishop? 

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Mr. BISHOP. Thank you, Madam Chair. And thank you very 

much for holding this hearing. 

Dr. Seavey, in your testimony, you indicate that the vast majority of home care workers are already paid the minimum wage. 

And, Mr. Dombi, you do not dispute that. 

So that is not in question. 

Ms. SEAVEY. No, it is not. 

Mr. BISHOP. All right. So what we are talking about here in 

terms of economic impact is primarily in terms of overtime pay. 

You have indicated, Dr. Seavey, in your testimony that the vast 

majority of home care workers do not work more than 40 hours per 

week. Do you have an approximation of what proportion of home 

care workers do on a regular basis work more than 40 hours a 

week? 

Ms. SEAVEY. Well, the only approximation that I have seen is 

from a Federal dataset called the Current Population Supplement, 

and the one from March 2006 showed 15 percent of home care 

workers. It is a highly constructed number. They do not ask you 

how many hours per week did you work overtime. It is——

Mr. BISHOP. But it is a number that is arrived at in good faith. 

I mean, 15 percent is——

Ms. SEAVEY. Yes. It is a very derived number. I think it is on 

the high side. 

Mr. BISHOP. All right. And is there any approximation of the 

number of hours of overtime that this 15 percent approximately of 

the workforce work? 

Ms. SEAVEY. I do not know that. 

Mr. BISHOP. All right. Because I mean, the average salary is 

$9.95 an hour, so $10 an hour. So we are talking about $5 an hour 

of premium pay—I will put ‘‘premium’’ in quotes—for a small minority of health care workers. And so what are we talking about—

3 hours a week of overtime, 4? I mean, are we talking $15 a week 

per employee per 15 percent of the employees? I mean, is that 

about right? 

Ms. SEAVEY. I think that is in the range, but another way to look 

at it is that if this bill were to pass, it is not the case that 800,000 

home care workers would have any change come to them at all. 

Mr. BISHOP. Precisely my point. 

And so I guess my question really is to Mr. Dombi. You have predicted rather significant consequences. You have talked about denial of overtime. You have talked about diminution of care. You 

have talked about withdrawal of health benefits. You have laid out 

a fairly bleak scenario in the event that this legislation is passed. 

But it seems to me that the economic consequences, first off, will 

be attributed to very, very few workers, and they are relatively 

modest. 

So my question is: How do you reconcile this at least apparently 

very modest economic consequence? Take that as fact one. Fact 

two, that we already have 16 states in which this appears to be 

working reasonably well without the onslaught of the consequences 

that you are predicting. How do you then still take the position 

that these consequences are consequences that ought to deter us 

from trying to protect a disadvantaged segment of the workforce? 

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Mr. DOMBI. Congressman, there are several factors that go into 

consideration there. I think we do not know all of what we really 

need to know about the economics of home care and in particular 

the pay scales and hours worked of home care aides. I would submit that because of those 16 states, one of the reasons why there 

is limited overtime compensation that is paid and overtime that is 

worked is because of the obligation to pay the overtime compensation. And, you know, I do not know if I——

Mr. BISHOP. May I just interrupt you for a second? 

Presumably, overtime is offered or scheduled because there is a 

need for it, correct? 

Mr. DOMBI. It is a combination of offered and desired. The worker is looking for additional working hours in order to make ends 

meet. 

Mr. BISHOP. No, I guess my question is if overtime is withdrawn 

or withheld by the employer, how is the care provided? 

Mr. DOMBI. If overtime is withdrawn, how is the care provided? 

With an additional caregiver. 

Mr. BISHOP. Okay. But with a paucity of caregivers—my understanding is that this is one of the fastest-growing segments of our 

economy, and we do not have a workforce of keeping up with the 

demand—how is that possible? How is that functionally possible? 

Mr. DOMBI. At this point, there is sufficient supply of workforce 

to meet the existing demand. We do not believe that that will continue as the graying of America commands more. 

Mr. BISHOP. So wouldn’t providing overtime be a more cost-effective way for the employer of providing for an increased demand 

thereby saving on recruitment costs and training costs? So, I mean, 

even if there are adverse economic consequences to paying slightly 

more per hour to a very low number of workers for a very low number of hours, wouldn’t that be offset by savings in training, savings 

in recruitment? 

Mr. DOMBI. Well, we do not know, but that is actually the basis 

of the discussion that Dr. Seavey and Mr. Claypool and I had during the break, which was——

Mr. BISHOP. In other words, what I——

Mr. DOMBI [continuing]. There is some theory that it would be 

cheaper for the business to provide higher wages and overtime 

compensation than to take on the cost of recruitment and retention 

and everything that goes with that, and what I had discussed with 

Dr. Seavey’s organization some months ago and want to continue 

those discussions based on our further discussions today of joining 

forces and doing an analysis because if we can present a business 

model to my constituency that says it makes sense to do this for 

everybody’s interest, then we are going to sell that from here to 

California. 

Chairwoman WOOLSEY. Okay. Mr. Kline? 

Mr. KLINE. Thank you, Madam Chair. 

To the witnesses, thank you very much for being here today. It 

was really terrific testimony. It is great to have a panel of experts 

like this. 

We have just been advised by staff that the majority leader is 

going to shut off the votes very rapidly after the 15 minutes, so the 

normal slack that we have had is taken away from us. 

54

Let me just say that this issue is really, really pressing, as many 

of us baby boomers are now looking at our parents and the needs 

for home health care or assisted living or nursing home, and so the 

demand is growing. 

Mr. Dombi, I think you are right that we are going to have a 

supply and demand problem here. 

So I had some questions. Perhaps we can do them for the record, 

but let me just say thank you very much for your testimony today. 

And I yield back, Madam Chair. 

Chairwoman WOOLSEY. Thank you, Mr. Kline. 

You guys all go. 

I am going to close the hearing today. I would like to say two 

thoughts have come to mind. 

In Ms. Butler’s case, I thank you very much. You are the one 

that does the really hard work. 

And, Mr. Claypool, thank you because you know how necessary 

all this is. 

But the rest of you, you have been great experts. 

But in Ms. Butler’s case, for 2 hours more a week, you are going 

to pay somebody’s travel to and from? No way. So, I mean, there 

will be times it comes out ahead. 

I am sorry. We cannot do anymore. 

And then I would like to say the other thing that comes to mind 

is that we really need a national health care system in this country. What a difference that would make. 

So I am going to tell you again thank you very much. And, if we 

were not going to have these series of votes, we would keep on 

going for the rest of the day. 

As previously ordered, members have 14 days to submit additional materials for the hearing record. Any member who wishes to 

submit follow-up questions in writing to the witnesses should coordinate with the majority staff within 14 days. 

[Ms. Woolsey includes the following statements for the record:] 

[The statement of Mr. Oxford follows:]

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[The statement of Ms. Reyes follows:]

Prepared Statement of Laura Reyes, President-Elect, United Domestic 

Workers of America (AFSCME) 

My name is Laura Reyes. I am a home care provider and the President-elect of 

the United Domestic Workers of America (UDWA). My union and I appreciate the 

opportunity to submit testimony for the record. Since 1979, UDWA has been the pioneer union representing domestic workers, home attendants and in-home care workers. UDWA is affiliated with the National Union of Hospital and Health Care Employees, of the American Federation of State, County and Municipal Employees 

(AFSCME) and is proud to represent 50,000 home health care workers who work 

through the county based In-Home Supportive Services (IHSS) public authorities or 

Addus HealthCare, Inc., in California. UDWA was inspired by Ce ́sar E. Cha ́vez, who 


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recruited and trained our founding leaders and planted in them the seed to build 

the domestic workers movement. 

UDWA supports H.R. 3582, the Fair Home Health Care Act, which would ensure 

that home health care workers have the basic wage and hour protections under the 

national Fair Labor Standards Act. 

The home care providers represented by UDWA assist individuals who have disabilities with mobility, personal hygiene, transportation, cleaning and cooking, allowing them the independence to live at home with dignity and remain active community members. The unique emotional connection required, intense physical and 

personal nature of the work, and potential hazards of the work, make it very challenging, often draining and rewarding. For many elderly recipients of home care 

services, we are the only person they see regularly beside their physician. Because 

home care providers with UDWA are dedicated professionals and committed to the 

people we serve, we keenly understand the link between providing workers with living wages, benefits and training, which leads to a stable and well-trained workforce, 

and the delivery of quality services that truly satisfy our client customers’ needs. 

It is fundamentally wrong, unfair and unacceptable that the current law, as held 

by the Supreme Court, does not provide home care workers with the basic protections afforded to all hourly workers under the Federal Fair Labor Standards Act. 

Wages for home care workers are low and keep families near poverty. Two out of 

five home care workers employed by a home care agency lack health insurance. Due 

to the high injury rates, home care workers are especially vulnerable without adequate insurance coverage. 

The U.S. Department of Labor projects that at least another third of a million 

new home health aides will be needed by 2014 to meet the home health care needs 

of an aging population that is expected to more than double, from 13 million in 2000 

to 27 million in 2050. By providing home care workers with basic wage and hour 

protections, H.R. 3582 would help to reduce turnover and begin to address chronic 

provider shortages. 

The failure to provide minimum wage and hour standards for home care workers 

puts the individuals who need their services at risk. Since a client’s quality of life 

and safety may depend on the reliability and the skill of the home care worker, access to quality services depends on a stable and committed workforce. Low wages, 

long hours and no benefits will continue to deprive individuals with disabilities of 

access to needed services because these conditions drive more workers out of these 

important jobs at a time when the need for home care providers is expected to dramatically increase. 

Improving wages and benefits of workers has been shown to substantially reduce 

turnover and improve clients’ access to reliable and quality services that enable 

them to remain independent and in their homes. An evaluation of the aggregate impact of collective bargaining and changes in local wage statutes found that improving wages and benefits resulted in a 54 percent increase in the number of home care 

workers and reduced annual turnover by 30 percent. 

H.R. 3582, by providing home health care workers with the national minimum 

wage and hour protections, is an important step in improving the recruitment and 

retention of a reliable and skilled home care workforce but more must be done. 

UDWA urges Congress to improve funding for home care services, and to expand 

affordable access to health care. In America no one should be without health care, 

especially home health care workers. 

Without objection, this hearing is adjourned. Thank you. 

[Whereupon, at 11:09 a.m., the subcommittee was adjourned.]

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