Congress Shouldn’t Lock in a Broken Home Care Rule
Congress is debating the future of home care, but the discussion rests on a faulty premise.
The recently introduced Fair Wages for Home Care Workers Act, sponsored by Rep. Alexandria Ocasio-Cortez and Sen. Patty Murray, would codify the Obama administration’s 2013 Home Care Rule into federal law.
Supporters frame the bill as a matter of wages and worker protection, but federal labor data also show that workers in the field already earn well above the federal minimum wage. More central, that view ignores the deeper problems the Home Care Rule created and the larger question of why federal regulations make caregiving arrangements so difficult to structure in the first place.
For decades, federal law recognized that caregiving and companionship services provided inside a private home differ from traditional employment arrangements. Prior to the 2013 Home Care Rule, the companionship services exemption reflected that reality, allowing families to arrange flexible caregiving relationships centered on fellowship, protection, and assistance with daily living.
The importance of those arrangements is only growing. Nearly 88% of seniors say they would prefer to remain in their homes as they age rather than move to a senior living facility, yet many lack access to the kind of flexible support that makes aging in place possible.
The 2013 Home Care Rule dramatically narrowed the companionship exemption.
Under the revised rule, “companionship services” were redefined to include only fellowship and protection, limited to activities such as conversation, games, or simply being present in the home.
The rule also introduced what is known as the 80–20 rule, which limits how much time a caregiver may spend performing certain assistance tasks if the exemption is to apply. If more than 20% of a caregiver’s weekly hours are devoted to helping with activities such as dressing, meal preparation, or similar support, the exemption disappears entirely.
Additionally, the rule prohibited third-party employers, such as home care agencies, from claiming the exemption at all.
Anyone familiar with caregiving recognizes how unworkable these distinctions can be. A caregiver might help an elderly client out of bed, prepare breakfast, remind them to take medication, and fold laundry during the same morning visit. Under the 80–20 rule, those routine assistance tasks can determine whether the entire caregiving arrangement falls inside or outside the companionship exemption.
Even small details can create compliance problems. If a senior leaves a cup in the sink and the caregiver places it in the dishwasher, or helps retrieve a jacket stuck over their head, those small acts of assistance could count toward the 20% threshold. Caregivers and families are effectively expected to track and categorize these routine interactions throughout the day (calculating whether each action counts as companionship or care) instead of simply responding to the needs of the moment.
Taken together, the Obama-era changes inserted rigid regulatory categories into caregiving relationships that have historically depended on flexibility.
When compliance becomes complicated and costly, many families respond in the only practical way available: they arrange care under the table and pay informally. Off-the-books arrangements can leave both families and workers exposed to legal and financial risk.
The United States is entering a period of rapid population aging, and demand for home-based care will continue to rise in the coming decades. Policymakers should be focused on expanding caregiving options and reducing the barriers that make arranging care more difficult.
Codifying the Home Care Rule would move in the opposite direction. It would lock into federal law a regulatory system that has already proven poorly suited to the realities of caregiving.
Workers deserve fair pay and respect for the work they perform. Families deserve access to flexible, reliable care that allows loved ones to remain at home. Both are true, but a regulatory system built on rigid task calculations and artificial thresholds delivers neither.
Heather Madden is Vice President for Policy Initiatives at Independent Women.
