Overtime Ruling Upheld

by Kristin Rowan | Jan 9, 2026 | Legal

by Kristin Rowan, Editor

Ruling Upheld

Agencies must pay minimum wage and overtime

A District Court of Pennsylvania ruled in favor of the Secretary of Labor against the WiCare Home Care Agency. The parties engaged in a lawsuit alleging the agency failed to pay minimum wage and overtime.

Background

The battle on overtime wages for home health aides continues to create more questions than answers. The FLSA in 1974 extended overtime coverage for all domestic service workers with two exceptions: companion services and live-in employees. In 2013, the Department of Labor published a rule that created an exception to the exceptions: third-party employers, such as home care agencies and staffing agencies, cannot use the exception. This forced most home health and personal care agencies to pay minimum wage and overtime rates. Courts upheld this rule, applying deference to the DOL interpretation of the FLSA. This is in keeping with the Chevron Doctrine, which has since been overturned.

In July of 2025, the DOL proposed a rule that would revert back to the 1974 interpretation of the exceptions. Later that month, the Wage and Hour Division (WHD) of the DOL stated it would no longer uphold the 2013 change for new and existing cases. The DOL used the overturning of the Chevron case in support of the proposed rule.

Arguing Deference

WiCare lost the first case and the court ordered them to pay more than $1 million in back wages and damages. WiCare filed an appeal and argued that the DOL does not have standing to change the parameters of FLSA. The agency argued that government agencies should not be shown deference in their interpretation of a statute (Chevron Deference). They also argued that the DOL does not have the authority to override the exceptions for companion and live-in caregivers.

Court Unpersuaded

The opinion was filed by some but not all of the court of appeal judges. The court held that it is “well established” that agencies have the authority to give meaning to statutory terms. The decision upholds the now overturned Chevron Deference and conflicts with the 2025 statement from the WHD that it would not uphold the rule.

What it all Means

The proposed rule to undo the 2013 rule and revert to the 1974 rule is still undecided. This means that the existing FLSA rule remains intact. That rule requires overtime pay from an agency or other third-party employer.

This ruling on appeal is unlikely to impact other Chevron Defense cases. The court stated that the DOL has the express right to establish meaning and would have that right with or without Chevron. This ruling may, however, influence the proposed rule that would eliminate overtime requirements. The industry is split on support for this change and advocates continue to argue on both sides. This ruling may be used in attempts to stop the proposed rule from being finalized.

Final Thoughts

Until there is a clear change to the FLSA overtime and minimum wage exemptions and exceptions, individual employers and agencies should continue to ensure caregivers are paid both minimum wage and overtime wages in accordance with the existing exemptions.

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Kristin Rowan is the owner and Editor-in-chief of The Rowan Report, the industry’s most trusted source for care at home news. She is also a sought-after speaker on Artificial Intelligence, Technology Adoption and Lone Worker Safety. She is available to speak at state and national conferences as well as software user-group meetings.

Kristin also runs Girard Marketing Group, a multi-faceted boutique marketing firm specializing in content creation, social media management, and event marketing. She works with care at home software providers to create dynamic content that increases conversions for direct e-mail, social media, and websites. Connect with Kristin directly at kristin@girardmarketinggroup.com or www.girardmarketinggroup.com

©2026 by The Rowan Report, Peoria, AZ. All rights reserved. This article originally appeared in The Rowan Report. One copy may be printed for personal use: further reproduction by permission only. editor@therowanreport.com

Home Health in a Post-Chevron World

by Elizabeth E. Hogue, Esq. | Sep 27, 2024 | Admin, Advocacy, Audits, Regulatory

by Elizabeth E. Hogue, Esq.

The "Wicked Witch" Chevron is Gone

On June 28, 2024, the U.S. Supreme Court overturned a decision of the Court in 1984 often referred to as “Chevron.” The Chevron case said that Courts must defer to administrative actions that are reasonable interpretations of ambiguous statutory language.

In Loper Bright Enterprises v. Raimondo, however, the U.S. Supreme Court abandoned the decision in Chevron and said that:

- The “deference that Chevron requires of courts reviewing agency action cannot be squared with” the Administrative Procedure Act (APA). The APA “specified that courts, not agencies, will decide ‘all relevant questions of law’ arising on review of agency action…even those involving ambiguous laws – and set aside any such action inconsistent with the law as they interpret it.”
- The framers of the U.S. Constitution envisioned that the final “interpretation of the laws” would be “the proper and peculiar province of the courts.”
- The views of the executive branch should inform the judgment of the judiciary, not supersede it.
- “Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do.”

What Does it Mean for Providers?

The short answer is that we don’t know yet. It is unclear how the new standards of the Loper Bright decision will be applied and affect health care providers. The Supreme Court said that the recent Court decision does not call past cases into question that were based on Chevron, but existing regulations are not insulated from challenges. It is likely that several providers will “swing for the fences” for favorable rulings based on Loper Bright!

One possible “candidate” for disruption is the reliance of administrative law judges (ALJs) on Chapter 8 of the Medicare Program Integrity Manual. This section offers an overview of use of inferential statistics and statistical sampling to estimate overpayments in Medicare audits. Chapter 8 of the Manual is only nine pages long. ALJs routinely use this section of the Manual to hamper providers’ ability to mount a compelling defense that challenges auditors’ methods using widely accepted standards within the statistical community. Challenges to this practice based on Loper Bright may prevent ALJs from reliance on these sections of the Manual.

Another possible target is the use of sub-statutory and even sub-regulatory guidance from the Centers for Medicare and Medicaid Services (CMS) and the Medicare Administrative Contractors (MACs) by fraud and abuse enforcers to make determinations about illegal conduct, especially under the False Claims Act (FCA). Defendants arguably now have a better chance to challenge the basis of claims of illegal conduct in light of Loper Bright.

The story of Loper Bright has not been written by any means. Surely providers should use this significant change in the law to their benefit whenever possible.

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Elizabeth Hogue is an attorney in private practice with extensive experience in health care. She represents clients across the U.S., including professional associations, managed care providers, hospitals, long-term care facilities, home health agencies, durable medical equipment companies, and hospices.

©2024 by The Rowan Report, Peoria, AZ. All rights reserved. This article originally appeared in Healthcare at Home: The Rowan Report. One copy may be printed for personal use: further reproduction by permission only. editor@therowanreport.com

No portion of this material may be reproduced in any form without the advance written permission of the author.

BREAKING NEWS: Warren, Cassidy React to Supreme Court Ruling

by Kristin Rowan | Jul 26, 2024 | CMS, Medicare Advantage, Regulatory

by Kristin Rowan, Editor

The Background

Senators Warren and Cassidy react to the landmark decision by the Supreme Court in Loper Bright Enterprises v. Raimondo. That decision effectively overturned the Chevron Doctrine, which gave deference to federal agency decisions in interpreting ambiguous statutes. Eliminating the Chevron Deference puts more responsibility on federal agencies to show reason behind their interpretations. Likewise, it requires Congress to be less ambiguous in its wording of statutes. This decision would impact CMS’s ability to create their own definitions of terms when calculating reimbursement rates, implementing rules.

Senator Elizabeth Warren Reacts

Senator Elizabeth Warren (D-MA)

Less than one month after the U.S. Supreme Court decided the case that overturned Chevron Deference, Senator Elizabeth Warren (D-MA) introduced a bill in the Senate that would override the Supreme Court’s decision and establish Chevron Deference as law.

“Giant corporations are using far-right, unelected judges to hijack our government and undermine the will of Congress,” Warren said. According to Warren, the pending legislation, “The Stop Corporate Capture Act”, will stop corporate interest groups from using their own interpretations of statutes over the judgment of Congress or expert agencies.

Senator Cory Booker (D-NJ) called the Supreme Court decision “an egregious power grab from the US Supreme Court.”

Warren asserts that the overturning of Chevron Deference would put more power in the hands of industry-backed lobbyists who already have more negotiating power than the general public. This assertion is contrary to the majority opinion from Chief Justice John Roberts, who wrote, “Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority.”

Increasing Congressional Authority

In addition to making Chevron Deference law, the Stop Corporate Capture Act would also:

Modernize and Reform the Regulatory Process

- Streamline the White House’s review period for regulations, creating a 120-day time limit for review.
- Authorize agencies to reinstate rules that are rescinded by Congress through the Congressional Review Act.
- Reform agencies’ cost-benefit analysis to emphasize public benefits of a rule, including non-quantifiable benefits like promoting human dignity, securing child safety, and preventing discrimination.

Empower and Expand Public Participation in Rulemaking

- Create an Office of the Public Advocate to help members of the public participate more effectively in regulatory proceedings.
- Strengthen agency procedures for notifying the public about pending rulemakings.
- Provide the public with greater authority to hold agencies accountable for unreasonable delays in completing rules.
- Require agencies to respond to citizen petitions for rulemaking that contain 100,000 or more signatures.

Increase Transparency and Protect Independent Expertise in Rulemaking

- Require all rulemaking participants to disclose industry-funded research or other related conflicts of interest.
- Require any submitted scientific or other technical research that raises a specified corporate conflict of interest be made available for independent public review.
- Bring transparency to the White House regulatory review process by requiring disclosure of changes to draft rules during that process and the source of those changes.
- Require agency officials to provide justification when the regulatory review process ends with a rule being withdrawn.
- Establish financial penalties for corporate special interests that knowingly submit false information during the rulemaking process.

Senator Bill Cassidy Responds

At the same time that Warren introduced her bill overriding Loper v. Raimondo, Senator Bill Cassidy (R-LA) introduced the “Upholding Standards of Accountability (USA) Act of 2024.” Cassidy’s bill takes the removal of the Chevron Deference further than simply overturning the previous ruling. According to the description, the USA Act imposes additional accountability in agency rulemaking.

Senator Cassidy is the ranking member of the Senate Health, Education, Labor, and Pensions (HELP) Committee. He stated, “For decades, the executive branch has exploited Chevron deference to increase its power beyond what Congress intended, all while skirting congressional oversight. Now, with Chevron deference overturned, Congress must work to rein in the executive branch and hold it accountable to the people and their elected representatives.”

Senator Bill Cassidy (R-LA)

Decreasing Agency Authority

The direct impact of the Supreme Court decision is that federal agencies do not get preferential treatment when interpreting a statute. Cassidy’s bill requires the head of any federal agency signing a major rule to testify before the committee of jurisdiction within 30 days of the rule’s publication.

Additionally, the bill would:

- Require each person nominated to a Senate-confirmed position to testify before the committee of jurisdiction prior to Senate confirmation;
- Improve cost-benefit analyses by requiring federal agencies to conduct retrospective reviews of such analyses for major rulemakings within five years of each rule’s effective date;
- Clarify that federal agencies are permitted to communicate with Congress at all times regarding proposed rules; and
- Require timely, substantive responses to congressional oversight from federal agencies.

Cassidy Challenges Existing Rules

Immediately after the Loper v Raimondo decision, Sen. Cassidy sent a letter to the U.S. Secretary of Education Miguel Cardona asserting that the Education Department has established rules outside of the authority given to it by Congress. He specifically alluded to the new Title IX rule. Cassidy asked Cardona, “How will the department change its current practice to enforce the laws as Congress writes them, and not to improperly legislate via agency action?”

Given Cassidy’s position in the Senate HELP Committee and his previous statements on medical debt, the multitude of bills he introduced on transparency, accountability, and decreasing authority, this is likely not Cassidy’s last attempt to challenge agency rules.

Likely Outcomes

Senator Warren's Bill

There are ten co-sponsors of Warren’s bill and a long list of endorsing organizations. Despite that, experts say the bill has only a slim chance of passing in an election year in the Senate, where Democrats currently have a narrow majority control. The bill is even less likely to pass in the Republican controlled House of Representatives.

Senator Cassidy's Bill

Similar to Warren’s bill, Cassidy’s bill has a low likelihood of passing. The Democrat majority in the Senate may dismiss the bill before it ever reaches the house. In 2023, the 118th Congress passed only 34 bills, the lowest number in decades. With only a few months remaining for the Congress, and the focus turning to a new Democratic nominee, passing this, or any other, bill seems improbable.

Final Thoughts

Regardless of your political affiliation, the overturning of the Chevron Deference is good news for home health, hospice, and palliative care. This ruling puts more pressure on CMS to justify its reasoning for certain decisions it has made. Senator Warren’s bill threatens the advantage given to the home health industry related to NAHC’s senate and house bills and pending lawsuits. Senator Cassidy’s bill ensures federal agency oversight and requires CMS to rationalize their decisions and prove budget-neutrality.

We will continue following these and other Chevron Deference related stories.

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Kristin Rowan has been working at Healthcare at Home: The Rowan Report since 2008. She has a master’s degree in business administration and marketing and runs Girard Marketing Group, a multi-faceted boutique marketing firm specializing in event planning, sales, and marketing strategy. She has recently taken on the role of Editor of The Rowan Report and will add her voice to current Home Care topics as well as marketing tips for home care agencies. Connect with Kristin directly kristin@girardmarketinggroup.com or www.girardmarketinggroup.com

Chevron Deference Derailed

by Kristin Rowan | Jul 12, 2024 | Advocacy, CMS, Regulatory

by Kristin Rowan, Editor

Chevron Deference

“A government agency must conform to any clear legislative statements when interpreting and applying a law, but courts will give the agency deference in ambiguous situations as long as its interpretation is reasonable.”

This statement followed the unanimous (minus the three who did not take part in the decision) U.S. Supreme Court decision in the Chevron U.S.A., Inc. v. National Resources Defense Council. The case is known for establishing the extent to which a federal court should defer to a government agency’s interpretation of an ambiguous statement when constructing statutes.

Breaking Down Chevron Deference

For those of you who don’t have a law degree, here’s what that means:

When a statutory term (required by law) is not explicitly defined and explained by Congress, there is room for interpretation
When a government agency interprets that statutory term, the interpretation may come under question
As long as the interpretation is not arbitrary (random), capricious (impulsive or unpredictable), or contrary to the statute (opposite the intent when put into practice), federal courts should give more weight to the government agency’s interpretation than to any other interpretation

Implications

At the time, the Supreme Court argued that if Congress leaves a term open to interpretation, it is either stated openness to interpretation, or an implied openness to interpretation. If a statute is implicity open, the intent of Congress is to allow a government agency to create provisions and regulations from that statute as they see fit.

No one foresaw the impact this ruling would have on commerce and regulation in the U.S. To date, the Chevron Doctrine has been cited nearly 18,000 times in federal court decisions. The application of a statute based on agency interpretation could no longer be questioned or changed by judicial review.

Chevron Deference in Home Health

Since the advent of the PDGM model, CMS has calculated payment rates based on its interpretation of budget neutrality. The National Association for Home Care and Hospice has disputed the validity of both the interpretation of budget neutrality and the formulas used to calculate it.

Last year’s 2024 CMS Proposed Rule cut payment rates even further with a 2.890% Budget Neutrality permanent payment rate adjustment and a temporary rate adjustment to account for alleged overpayments from 2020-2022.

The lawsuit filed against CMS in response to the 2024 Final Rule was dismissed. NAHC began pursuing an administrative review with CMS. However, CMS has already stated that their final position is that budget neutrality has been calculated within the law.

NAHC Comment: 2023 CMS Rule

“That proposal also fails logically in that it puts care access in severe jeopardy in applying a budget neutrality reconciliation methodology that takes PDGM-induced behavior changes to assess what otherwise would have been expended by Medicare in the absence of PDGM. In doing so, CMS fully fails to meet its obligation to ensure that the transition to a new payment model is budget neutral.”

NAHC Comment Source

Chevron Deference Repealed

In a landmark ruling on Friday, June 28. 2024, the Supreme Court removed the power of federal agencies to interpret laws and ruled that the courts should rely on their own intrepretation of ambiguous laws. Justice Elena Kagan, who dissented the ruling, predicts this change “will cause a massive shock to the legal system.”

Chief Justice John Roberts explained in his opinion that the Chevron Deference is inconsistent with the Administrative Procedure Act (APA). The APA is a federal law which contains instructions for courts to review actions by federal agencies. According to Roberts, the APA directs courts to decide legal questions using their own judgment. Therefore, he noted, agency interpretations of statutes are not entitled to deference. “…it remains the responsibility of the court to decide whether the law means what the agency says,” concluded Roberts.

NAHC to Refile Lawsuit after Chevron Deference Repeal

2024 Final Rule

In April, 2024, the lawsuit filed against CMS regarding the methodology for calculating budget neutrality was dismissed. Now, NAHC can refile the lawsuit and force CMS to justify its decision to enact repeated reimbursement cuts for home health.

In an interview on Wednesday, Bill Dombi told The Rowan Report, “This improves the chances of success for our lawsuit. CMS is going to have to support their regulatory interpretations going forward. Congress is going to have to offer more detail in its legislative language, leaving less to being open to interpretation.” Regarding the PDGM lawsuit, CMS argued that the law was clear and the agency’s interpretation was valid. The overturning of Chevron Deference allows the possibility of arguing that CMS’s interpretation of the law is flawed.

80/20 Rule

Dombi also explained that the Ensuring Access to Medicaid Services rule, also known as the 80/20 rule, was “drawn out of a whole cloth.” Previously, there were limited avenues available to challenge this rule. The repeal of Chevron Deference significantly improves the ability to challenge the 80/20 rule. The argument now, Dombi told The Rowan Report, is “Does CMS even have the authority to do this?”

More to Come

The Rowan Report anticipates more news coming out of Washington D.C. and the NAHC office regarding the 2024 pay cuts and the 80/20 rule. We will provide ongoing updates and information as it becomes available.

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