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Last week, Karen Kaslow shared some excellent suggestions from local home care agencies about how to have a positive home care experience. This article intends to build on what was reported last week.

In case you missed that article, you can find it here in the collection of previous articles on Keystone Elder Law’s website: keystoneelderlaw.com.

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

When a registry provides a home care aide to a client, the aide serves as an independent contractor to the client. Because home care workers are employees of agencies, the probability is much higher that a home care worker will either show up as expected, or an acceptable substitute will be provided by the agency.

As an employer, the agency has the leverage and authority to communicate a client’s expectations to the home care aide, and may reassign or discipline the aide when appropriate.

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

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

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

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

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

Permitted activities and services include assistance with bowel and bladder routines, assistance with medication, ostomy care, clean intermittent catheterization, assistance with skin care and wound care.

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

When our clients elect to hire a caregiver as an independent contractor instead of using an agency, we advise them to contact their insurance agent to make sure that their coverage is adequate for the event of an injury suffered by the home care aide. This likely will require an umbrella liability policy.

Although we do not prepare federal income tax returns or give complete tax advice, we also remind our clients that they have a legal duty to file a 1099 form with the IRS if they pay a home care worker more than $600 in the tax year.

Many people are not aware of the differences between registries and agencies. I first became aware of the issues years ago when my mother’s accountant explained that, since my mother had not filed a 1099, she should not claim a Schedule A medical deduction for funds paid to the home care aide.

Upon discovering the issue, my mother declined to issue the 1099 since it would have created an unexpected tax burden for the home care aide who had spent all her income on basic living expenses.

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

As an organization that is concerned with helping our clients to get the best possible care and to avoid foreseeable risks, we generally advise our clients that it is better to get a home care aide from an agency than from a registry. However, since the total hourly cost paid by a client is lower for registry help than agency help, and caregivers can often earn a higher hourly wage as an independent contractor than as an employee, there are circumstances when the economic motivations of the client and home care aide result in the use of a registry.

Consumers who struggle to afford home care, and who are prepared for the extra management responsibilities and liabilities that accompany use of a registry instead of an agency, may consider a registry to be an acceptable legal option that is better than not getting any home care at all.

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Learn more about the article’s author, and other community education opportunities, at www.keystoneelderlaw.com. Check out the book, “Long Term Care Guide: Essential Tools for Solving the Elder Care Puzzle,” at the Whistlestop Bookshop or Amazon, and see Keystone’s free directory of services for older adults at www.mypeaceguide.com. Keystone Elder Law has offices in Mechanicsburg and Carlisle. Call 717-697-3223 for a free telephone consultation.

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