Home healthcare providers dodge threatening OSHA bullet

By MATTHEW HAY

HHBR Washington Correspondent

WASHINGTON – Home care providers dodged a bullet last week when the Department of Labor withdrew its opinion extending all Occupational Safety and Health Administration (OSHA) record keeping and standard requirements to any workers furnishing services in a private home.

"While the letter opinion has been withdrawn, the notice of the withdrawal notes that the policy will be considered further and may be reissued in the future," warns Jim Pyles, counsel for the Home Health Services and Staffing Association (HHSSA; Washington).

HHSSA worked with the administration, Rep. Frank Wolf (R-VA), and the Chamber of Commerce to argue that the opinion would have imposed OSHA requirements on home work sites that are outside of the employer’s control. "The policy seems to be in conflict with the ruling we obtained on behalf of HHSSA in a 1993 Seventh Circuit decision, which held that OSHA work site related requirements cannot be imposed on work sites that are not under the employer’s control," said Pyles.

According to Pyles, the OSHA advisory would have had a devastating impact on home care if it had been allowed to stand. "It could have required home health companies to assume responsibility for all potential safety hazards in the homes of any employees who take work home and in the homes of any patients receiving services in the home," he said. "That policy would have exposed home health companies to liability for sanctions under OSHA standards and Medicare conditions of participation, but also would have created liability for those companies for personal injury claims."

Pyles added that it would have compelled home health employers to prohibit employees from completing work at home and would have made home care even less accessible. He said he expects this to be the type of issue HHSSA pursues as part of the newly created American Association for Home Care.