Did a Kentucky Medicaid recipient employing a consumer-directed caregiver need workers' compensation coverage?

Plain-English summary

A legislator asked whether Kentucky Medicaid recipients acting as employers of record for caregivers in a consumer-directed personal-care program had to obtain workers' compensation insurance. The Attorney General said they did not for services under KRS 205.5606. A separate statute, KRS 205.5607, expressly made the workers' compensation chapter inapplicable to those provider-consumer arrangements.

The AG distinguished that specific exemption from the more general exemption for “domestic servant employment.” It said whether an individual in-home caregiver qualified as a domestic servant could depend on the facts, and that many personal-care workers might not fit that category. The specific Medicaid program exemption supplied the answer without resolving the domestic-servant question. The opinion said an injured worker in the exempt relationship would have only a common-law negligence claim against the employer.

Currency note

This opinion was issued in 2007. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did a Medicaid recipient need workers' compensation insurance for a consumer-directed caregiver? A: The AG said no for the provider-consumer services covered by KRS 205.5606 and expressly exempted by KRS 205.5607.

Q: Did the caregiver have to count as a domestic servant to qualify for the exemption? A: No. The AG relied on the program-specific statute, while saying the domestic-servant classification was fact-dependent and uncertain.

Q: Did the opinion cover all home-care jobs?
A: No. Its conclusion concerned services under the named consumer-directed Medicaid program.

Q: What remedy did the opinion identify for an injured worker in the exempt relationship? A: It identified a possible common-law negligence claim against the employer, rather than the mandatory workers' compensation scheme.

Background and statutory framework

KRS 205.5607 said “the provisions of KRS Chapter 342 shall not apply” to services under KRS 205.5606 between a provider and consumer or the other listed parties. The AG contrasted that express exemption with KRS 342.650(1)'s domestic-servant exception. It concluded that the specific program statute controlled the caregiver relationship in the question.

Citations and references

Statutes: KRS 205.5607; KRS 205.5606; KRS 342.650(1).

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_784d6508-c7d7-4aa8-a515-f7e0553ca77f/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_784d6508-c7d7-4aa8-a515-f7e0553ca77f

Original opinion text

OAG 07-001
March 15, 2007
Subject:

Applicability of workers’ compensation laws to Medicaid recipients employing caregivers under KRS 205.5606

Requested by:

Representative Jimmie Lee
House of Representatives, 25th District

Written by:

James M. Herrick
Assistant Attorney General

Syllabus:

Medicaid recipients employing service providers under KRS 205.5606 are exempt from the requirements of KRS Chapter 342 by virtue of KRS 205.5607, even though such providers might not be considered “domestic servants” under KRS 342.650(1).

Statutes construed:
OAG’s cited:

KRS 205.5607, KRS 342.650(1)

OAG 79-584, OAG 84-257

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

OAG 07-001
Page 2

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 workrelated 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 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.

OAG 07-001
Page 3

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.

Gregory D. Stumbo
Attorney General

James M. Herrick
Assistant Attorney General