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The future of private duty regulations (beware what follows is pure speculation)

Posted by: Robert Markette
April 09, 2008
Topic: Home Care and Hospice Regulations

I was out in San Diego for the NPDA convention.  One of the recurring themes of the convention was the attendees concern about where the regulation of the industry was heading.  For those of you who don’t know, NPDA is the National Private Duty Association.  Its members are the private duty home care providers, also known as the non-medical home care or personal care industry.

Private duty providers around the country are split.  Some feel that licensure will improve the industry’s reputation and should be sought after.  Others feel that licensure will lead to a heavier burden on providers and should be avoided.

Personally, as an attorney who spends a lot of time helping clients deal with  regulators and regulations, I tend to agree with the providers who are opposed to regulating private duty.  (although more regulation does tend to lead to more business for me.) Unfortunately, I do not think that is very likely to happen.  

I think the regulation of the private duty industry is probably inevitable, because of a number of factors.  First, the industry is growing rapidly.  As more and more providers serve more and more clients, the industry will become more visible to state regulators.  (State regulators are already aware of private duty, but as the industry grows the regulators will become more interested in regulating them.)  As it becomes more visible, the likelihood of regulation increases.

Second, the industry serves populations traditionally considered “vulnerable”- the elderly, children, and the disabled.  Because of the patient population served by the industry, legislators will feel compelled to take action to regulate the industry as a means to protect this population.  (This move will be more rapid if a member of a vulnerable population is harmed, neglected, or taken advantage of.)

Third, private duty “looks like” home health care.  State agencies look at private duty agencies and see an entity sending employees into a patient’s home to provide care.  Because of this similarity to home health care, the reaction is that it needs to be regulated.  

Although I think these factors make the eventual licensure of private duty inevitable (at least in any state the licenses home health), I am not suggesting that it ought to be regulated or that the industry should simply accept it.  I think the private duty industry needs to be aware that this may be the future and act accordingly.  To the extent you can prevent it, the industry will likely be better relying upon accreditation, industry standards, etc.

However, the industry needs to remain vigilant, because if licensure or other regulation looks to be heading your way, the providers and their trade associations need to educate lawmakers.  Lawmakers need to see why private duty should not be regulated like home health.  For example, doctor’s orders should not be necessary for most private duty care.  Regulators need to know what care the industry provides, how they provide it, etc.  They need to know that less regulation is appropriate.

It will fall to the providers in each state to be aware of how its state regulators “view” the industry and be ready to take action.  They need to be part of the process of developing licensure statutes, licensure standards etc.  Indiana’s providers were very successful in this effort and the state personal services licensure regime address private duty in a very different way and restricted the use of regulations by the licensing agency.

         

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