Md. Code Regs. 09.32.01.18-3 - Home Health Care Illustrations
A. The illustrations in this regulation
provide guidance for the home health care industry in the application of Labor
and Employment Article, ยง8-205, Annotated
Code of Maryland and do not apply to any other State or federal labor
law.
B. Illustration 1.
(1) Extra Loving Care ("ELC") is a Nursing
Referral Service Agency ("NRSA") licensed by the Maryland Department of Health
and Mental Hygiene ("DHMH") pursuant to COMAR 10.07.07. It has a registry of
certified nursing assistants ("CNAs"), geriatric nursing assistants ("GNAs")
and licensed practical nurses ("LPNs"). The company verifies that all workers
do not have a criminal background and are properly licensed before placing them
on the registry.
(2) Before placing
a worker on its registry, ELC requires that the worker attend mandatory
training and receive a list of rules and policies to follow in clients' homes.
ELC assigns available workers on its registry to clients. ELC sets the workers'
schedules and requires documentation of the work performed, such as time sheets
or notes.
(3) ELC determines the
workers' rates of pay and the workers cannot negotiate pay rates directly with
ELC's clients. Clients pay ELC and ELC deducts its fee and pays the workers. If
a client is dissatisfied with a worker, the client contacts ELC directly. Each
worker must sign an agreement with ELC that restricts his or her ability to
enter into employment agreements with ELC's clients, past or present.
(4) The workers on ELC's registry are
employees of ELC.
C.
Illustration 2.
(2) LC provides its clients
with the names and contact information for available workers on its registry.
Once contacted, a worker may then set and adjust their work hours and may
negotiate their rates of pay directly with the client, unless otherwise
established by a third party payor. The workers on LC's registry, in
conjunction with the client, determine the client's needs and use their own
tools and equipment to carry out their services. Workers are not required to
report hours to LC, although some workers maintain notes for their own
records.
(3) Workers on LC's
registry carry their own workers' compensation insurance and/or professional
liability insurance coverage. Workers have their own independent businesses
that are demonstrated by Federal Employer Identification Numbers ("FEINs"), tax
returns, business cards, invoices, advertising and/or other indicia of
operating an independently established business. Workers are responsible for
maintaining necessary licensures and certifications, however, LC performs
periodic credential checks to confirm that workers' licenses and certifications
are current.
(4) The workers on
LC's registry invoice clients directly and are paid directly by the client. The
workers are then responsible for remitting any referral fee directly to LC. LC
only deviates from this payment system in limited circumstances when an
alternative method of payment is necessitated by a third party payor or other
legal arrangement established for the benefit of the care recipient. If
dissatisfied with a worker, the client informs the worker directly. The workers
are not bound by a non-solicitation provision.
(5) The workers on LC's registry are
independent contractors.
Notes
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