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The U.S. Bureau of Labor Statistics projects that the number of people providing personal and health care will increase by 41% in the coming decade. Many of us will be hiring them for ourselves, our spouses or our parents. We can seek recommendations from our doctor or a geriatric care manager. When hiring help at home for the elderly, keep the following in mind.

Hiring through an agency

We may hire directly or through an agency which recruits and trains, handles tax and insurance and record keeping and should also provide background checks and equipment and arrange for substitutes when a worker does not show. It is important to check licenses, training, bonding and insurance and to limit our liability as a “joint employer” to the greatest extent possible. We must be clear who will do what and when. This may be especially true when it comes to medication management, wound and dressing care. Some home health care agencies will not provide these. Some home care agencies which focus on non-medical assistance will prepare separate meals. Some will not. We should probably avoid “companionship care” which isn’t care at all and is not required to even pay minimum wage.

Whether we hire directly or through an agency, it is important to have a written contract setting forth each person’s rights and responsibilities. There should be a detailed job description. The contract should state whether travel time is paid, when we must be notified if someone will be late or absent and what the consequences are. Individual references should be required and checked.

Hiring through an agency is the most expensive route. We might pay $30 to 38 dollars an hour and the worker might receive $18. As of May 2017, there were 76,370 personal and direct care health workers such as certified nurse’s assistants in Texas. Their mean average pay was $9.95/hour. Nationwide, ¼ of these workers are immigrants. 40% must rely on food stamps or other public benefits to get by.

Hiring directly

Given this, we may prefer to hire directly and pay a little more in hope of better quality and less turnover. As employers, we will have to take several steps to stay within the law.

  • Complete Form I-0 Employment Eligibility Verification
  • File Form W-4 Employee Withholding Allowance Certification
  • Collect and remit withholding tax obligations for Social Security and Medicare under the Federal Insurance Contributions Act or FICA)
  • Pay federal and state unemployment taxes on taxable wages
  • Comply with minimum wage, overtime and other pay standards of the Fair Labor Standards Act (FLSA)
  • Carry worker’s compensation and health insurance
  • Maintain appropriate records to support filings

In addition to ADP and Paychex and local payroll processing firms used by many small businesses, Austin-based Home Work Solutions focuses in this area.

If someone we hire works for other people as well, we may wonder whether we are really an employer. If they are an independent contractor, our obligation may be limited to filing Form 1099-MiSC. Various federal and state statutes treat this question differently. The U.S. Department of Labor has what it calls an economic reality test. This looks at

  • the extent to which the work performed is an integral part of the employer’s business
  • the worker’s opportunity for profit or loss depending on his or her managerial skill
  • whether the work performed required specific skills and initiative
  • the permanency of the relationship
  • the degree of control exercised or retained by the employer

Even if they only work for us part-time, most of the people we hire will be employees. They will have the same minimum wage and overtime protections as any other employee. The U.S. Department of Labor’s Home Care Final Rule allows three exceptions. The first is for a companion, someone who spends less than 20% of her time assisting with personal care, does not perform medically-related tasks and does not perform general household tasks mostly for other members of the household. This might apply to a teenager who comes by to read or play chess or takes someone for a daily “walk” in their wheelchair. The second is for a family member who works beyond the 40 hours in a written contract – and is paid nothing for the additional time. The third applies to someone who lives in if she has no other home or if she spends 120 hours or 5 consecutive nights per week in our home.

Finding the right person or group of people can be a challenge. Paying and treating them well enough that they stay should not be.

Medicare, Medicaid and VA

Remember that if a nurse, a physical or speech and language therapist is needed, on doctor’s orders Medicare by regulation should pay for up to 28 hours per week for care by these people, an occupational therapist and certified nurse’s assistants (35 in exceptional circumstances) but, under the payment structure effective January 1, 2019, really pays for only up to 6 hours per week and privileges nursing over therapy and acute care over chronic conditions.

VA Aid & Attendance, which pays a dollar amount, and the VA Geriatric Care program, which pays for up to 20 hours/week at $13-20/hour are available.

In 2024 Medicaid home health may begin paying $17/hour for up to 20 hours/week through Community Attendant Services, helping people who need substantial assistance with two or more of the six activities of daily living, or 30-50 hours per week through the Star Plus Waiver, which is designed to keep people out of nursing homes.

But even these must be supplemented by family and by paying privately.


Elder law attorney, Terry Garrett, CELA, is a member of the National Academy of Elder Law Attorneys and is an Approved Guardianship Attorney. She assists people in elder law, estate and special needs planning, guardianship and settling estates. She graduated with honors from Cornell University. She was on the Dean’s List at Wharton Business School. She earned her J.D. at Columbia Law School, receiving the Parker Award and a Mellon Fellowship.

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