Hiring Family of Medicaid Clients as Caregivers

The following information is provided by Stacey Spelman, a policy analyst with ODHS Aging and People with Disabilities. Please contact her at STACEY.D.SPELMAN@odhs.oregon.gov with any questions about this information.

An in-home care agency can make a determination in their policies regarding whether or not they want to hire family members of a client as a caregiver. Nothing in the Medicaid in-home care agency rules prevents an agency from hiring a family member of a client as a caregiver, including a spouse. However, if an in-home care agency chooses to hire family members, it is important to ensure the family member understands that they are an employee of the in-home care agency and they must follow all the same protocols as any other employee of the in-home care agency. For example, even if they live with the client, they still must work their scheduled shifts and clock in and out, just like any other employee of the in-home care agency. Furthermore, concerns with their work performance, compliance with employee requirements, etc. must be addressed by the in-home care agency following the normal process for all of their employees.

What is prohibited in rule is an in-home care agency hiring a client’s representative. Under Oregon Administrative Rules (OAR) 411-033-0010 (44), a “representative” is defined as:

“[A] person either appointed by an individual to participate in service planning on the individual’s behalf or an individual’s natural support with longstanding involvement in assuring the individual’s health, safety and welfare. A representative may not be a paid employee of the in-home care agency.”

The last part of that definition expressly states that a representative “may not be a paid employee of the in-home care agency.”

A representative is in the unique position to make decisions about the client’s care, including choice of provider. The Department wants to ensure that the representative is making the best decision for the client and not for themselves. If the representative is benefiting financially in the scenario, it is possible that the client’s needs were not the primary consideration.

The Department has shared the following scenarios as examples to help in-home care agencies determine if a potential employee is also the client’s representative and therefore cannot be the caregiver:

Scenario 1: A client calls you and tells you that they would like to hire your agency and they would like their daughter to be their caregiver.

In this scenario, the client is able to direct their care and tell you what they would like. Ask the client if they have appointed or designated their daughter to be their representative for their service needs. If they have not, you can hire the daughter. As you move forward, make sure that all decisions and communications regarding the client’s service needs come from the client and not the daughter. Scenario 2: The spouse of the client calls you and tells you that he would like to work for your agency and then his wife will hire you.

This would require additional information. You would need to ask to speak to the client. If the client is unable to participate in service planning and you determine the spouse is the representative, then you cannot hire them. If the client is able to speak with you, discuss their care needs, etc. and tells you or provides you with information that the spouse is not their representative, you can hire the spouse.

Scenario 3: The grandson of the client calls you and states that his grandmother would like to hire your agency and his mom would like to be the caregiver.

In this scenario, if you can verify the grandson has been appointed or designated as the representative, you would be able to hire the mother. Ensure that all communication and decisions regarding the services are done through the grandson.

If there are still questions about whether the potential employee is a representative you can also reach out to the assigned case manager for the client. The case manager may have additional information on who is directing the client’s care and making those decisions.

In any of the scenarios, the employee SHOULD NOT be the one that participates in or directs the service planning process (including the development of the service plan or any changes or updates to the service plan), request changes to the service plan, determine the type or scope of services to be provided, or dictate the range of hours for services. Even though the employee is a family member, that employee’s role, duties, and responsibilities are like any other employee at your agency. They can provide the required services, provide a report on the client’s status including any changes in condition, and notify you if they are sick and cannot work. You would follow up with the client or client’s representative about the service plan and address any scheduling needs for the client (e.g., the family member employee cannot tell you they are sick, can’t work, the client is “fine” without coverage, and will make up hours – just as with any other client, you would need to find appropriate coverage for the shift).