Congress and the Caregivers - New York Times



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June 15, 2007
Editorial
Congress and the Caregivers
A retired home health aide who sued her employer for unpaid overtime lost
big this week in the Supreme Court — and so did fairness and the health
care system. A regulation that was ill-conceived and is cruelly applied
is depriving an increasingly important group of health care providers of
a decent living.

No one disputed that the health aide, Evelyn Coke, 73, of Queens, had
worked overtime for no extra pay. Employed for 20 years by Long Island
Care at Home, a private, for-profit agency, she was often on duty for
more than eight hours a day, including many 24-hour stretches in the
homes of elderly people she was assigned to care for.

But the Labor Department decided in 1975 to exclude home health aides
from basic labor protections, like the minimum wage and time-and-a-half
for overtime — and in a 9-to-0 decision, the Supreme Court refused to do
anything about it. The justices rejected Ms. Coke’s argument that
Congress intended to include home health employees in the labor law and
to exclude only certain domestic workers, like baby sitters and
companions for the elderly, who are paid by the families they work for.

They ruled that Congress authorized the Labor Department to write the
regulation on who was to be covered under the law and that the department
properly did just that. Justice Stephen Breyer wrote that, given those
circumstances, deferring to the department’s rule “is what the law
requires.”

That may be. But the justices were completely silent on the question of
whether denying overtime to home health employees is good policy, let
alone morally justifiable. Clearly it is neither. As the population ages,
home health care has become one of the nation’s fastest growing
occupations, with an estimated 650,000 aides currently employed — most of
them by for-profit agencies. Most of them are low income, female and
minority, a recipe for exploitation. The support of federal labor laws is
crucial to ensure that the aides, entrusted with the care of the most
vulnerable Americans, are treated with professionalism, fairness and
dignity.

And yet, powerful forces — the Bush administration and the Bloomberg
administration among them — opposed Ms. Coke’s claim to overtime pay.
They argued that federal labor protection for home health workers would
drive up the cost of Medicaid and Medicare, which cover many home health
care bills. There is no doubt that the costs of these programs are
rising, but refusing to pay employees fairly for the work they do is not
an acceptable way to keep costs down.

Congress has to reform the law to include home health employees. If that
intensifies the pressure to find suitable ways to pay for the health
needs of an aging population, fine.