Request By:
Representative Jimmie Lee
House of Representatives, 25th District
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Herrick, Assistant Attorney General
Opinion of the Attorney General
In 2004 the General Assembly enacted KRS 205.5605-205.5607, which authorizes certain Medicaid recipients to be provided with a budget allowance to purchase approved services for their personal care needs in a "consumer-directed" manner. In some situations under this enactment, a Medicaid recipient may be the employer of record for a provider of services.
The question presented is whether Medicaid recipients who employ caregivers for home- and community-based services pursuant to KRS 205.5605-205.5607 are required to obtain workers' compensation insurance and otherwise to comply with the provisions of KRS Chapter 342 in regard to these service providers. We believe they are not required to do so.
KRS 205.5607 provides: "Notwithstanding any provision of law to the contrary, the provisions of KRS Chapter 342 shall not apply to the provision of any service under KRS 205.5606 between the provider and the state or any state agency or political subdivision, the provider and the consumer, or as arranged by the provider and any fiscal intermediary, representative, or service advisor." KRS 205.5605(5)(b) further clarifies that "[a] consumer-employed caregiver that renders services eligible for reimbursement under this program for whom the consumer is the employer of record" is included under the definition of "provider. " Therefore, the mandatory provisions of the workers' compensation chapter would not apply to a Medicaid recipient who stands as employer of record for such a provider. Employees incurring work-related injuries or diseases under this exemption would have legal recourse against the employer only for common-law negligence. OAG 79-584.
A question has also been raised as to whether the workers' compensation exemption in KRS 342.650(1) for "domestic servant employment" would apply to in-home caregivers under KRS 205.5606. This is less certain and might depend on the facts of each particular case.
The former Court of Appeals has opined that domestic servants are identified by "the nature of their work and their relation to the home. ? Ordinarily, only one or two are so employed, and they are often regarded as members of the household. They are connected with the maintenance of the house and premises in such a way that their work and duties have to do with the running of the home and the ministering to the wants, comforts and conveniences of the members of the household. " City of Louisville v. Sebree, 308 Ky. 420, 434, 214 S.W.2d 248, 256 (1948). 1 Likewise, in Barres v. Watterson Hotel Co., 196 Ky. 100, 244 S.W. 308, 309 (1922), the Court noted the duties of a domestic servant to be "somewhat similar" to those of a hotel maid. It cannot be presumed that in-home caregivers under KRS 205.5606 would fit this description, since most such workers would likely be employed to administer personal care to an individual rather than to maintain the home and premises.
KRS 205.5607 , however, specifically addresses the situation of such caregivers with respect to workers' compensation and thus supersedes the more general provisions of KRS Chapter 342. OAG 84-257; Land v. Newsome, 614 S.W.2d 948 (Ky. 1981). It is therefore unnecessary to rely on the domestic-servant exemption of KRS 342.650(1) to establish an exemption, since the employer-employee relationship of Medicaid recipients to providers is expressly exempted from that chapter's coverage by the 2004 enactment.
Footnotes
Footnotes
1 Although the Sebree case dealt with an exemption from local occupational tax rather than from workers' compensation, the analysis is relevant because it addresses the reasonableness of legislatively treating domestic servants as a distinct class of employees.
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