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From: Bruce Darling
BACKGROUND
The Department of Labor (DOL) has proposed changes in federal labor rules that, although well-intentioned, will have a negative impact on people with disabilities and most seriously impact people who have the most significant disabilities who rely on Medicaid home and community based services to be independent.
Labor advocates have urged people to support these rules which are intended to assure that attendants get paid minimum wage and are paid time-and-a-half for overtime work. The disability community recognizes the invaluable role that attendants play in supporting the independence of people with disabilities and has advocated for increased funding for attendant services to improve wages, however the way DOL is implementing this rule change will have a serious negative impact on people with disabilities and promote unwanted institutionalization.
Please TAKE ACTION before the comment deadline
TAKE ACTION
There are several ways to TAKE ACTION on this important issue.
1. Submit comments on the web. ADAPT has worked with the Center for Disability Rights to set up a system online to make this process easy for you.
When you submit your comments, be sure to edit and personalize the body of the message. Your comments to the Department of Labor will first be sent to the Center for Disability Rights who will forward them by the deadline to DOL.
2. Mail written comments directly to the US Department of Labor. Send written comments to:
Mary Ziegler, Director
Division of Regulations, Legislation, and Interpretation
Wage and Hour Division
U.S. Department of Labor
Room S–3502/ RIN 1235–AA05
200 Constitution Avenue NW.
Washington, DC 20210
Please TAKE ACTION before the comment deadline
DETAILED POLICY IMPLICATIONS
Most notably, people with disabilities could face unwanted institutionalization as a result of implementing these proposed rules.
  • Increasing the cost of home and community based services by requiring overtime pay, without increasing the Medicaid rates or raising the Medicaid caps for available funding, will result in a reduction in hours of personal assistance, forcing some people with disabilities into unwanted institutionalization.
·Requiring minimum wage payments for overnight assistance may raise the cost of serving individuals above established Medicaid caps, resulting in people with significant disabilities either going without needed assistance or being forced into unwanted institutionalization.
·The proposed DOL change will limit the availability of family and friends as paid attendants in consumer directed personal assistance programs. Reducing the availability of this vital component of the attendant workforce threatens the independence of Americans with disabilities.
The DOL also significantly mischaracterizes consumer directed services. DOL describes consumer directed services “as a ‘grey market;’ that contains an element of ‘over-the-back-fence network of women [who are] usually untrained, unscreened, and unsupervised, but more affordable without an agency’s fee, less constrained by regulations and hired through personal recommendation.’ The term ‘grey market’ is sometimes used to suggest that at least some of these private arrangements are designed to avoid applicable labor laws…”
DOL notes that “There is no consolidated source of data on state consumer-directed programs” even though there are several resources within the disability community, and DOL fails to assess the impact that the proposed changes will have on that system for providing services and supports to people with disabilities.
It is also likely that the proposed changes will not significantly improve the lives of attendants. Because Medicaid and Medicare rates are not being increased to cover the additional cost associated with these changes, home care agencies will limit the hours attendants can work, forcing attendants who currently to work for multiple agencies in order to match their current standard of living.
The necessity to balance efforts to enhance workers’ wages and benefits with the needs of people with disabilities was identified and addressed in Guiding Principles which were developed between SEIU and disability advocates. According to those Guiding Principles, signed on November 16, 2011, “As a general principle, enhancements to workers’ wages and benefits shall be paid for through increased funding.” The DOL proposal does not do this.
KEY POINTS FOR MAILED COMMENTS
Although I want attendants to have good wages, I am deeply concerned that establishing a requirement that attendants be paid overtime in this manner will negatively impact people with significant disabilities and their ability to live in the Most Integrated Setting.
  • Increasing the cost of home and community based services by requiring overtime and overtime pay without increasing the Medicaid rates or raising the Medicaid caps for available funding will result in a reduction in hours of personal assistance, forcing some people into unwanted institutionalization.
·Requiring minimum wage payments for overnight assistance may make raise the cost of those services above established Medicaid caps, resulting in people going without needed assistance or being forced into unwanted institutionalization, and the proposed DOL change will limit the availability of family and friends as paid attendants in consumer directed personal assistance programs. Reducing the availability of this vital component of the attendant workforce threatens the independence of Americans with disabilities.
·According to DOL’s own analysis, the proposed rules have the potential to increase the rate of institutionalization of people with disabilities.
Finally, I am concerned that the proposed changes will not significantly improve the lives of attendants. Because Medicaid and Medicare rates are not being increased to cover the additional cost associated with these changes, home care agencies simply will limit the hours attendants can work, forcing attendants to work for multiple agencies in order to match their current standard of living.
I urge the Department of Labor to postpone implementation of these proposed changes until it has worked with disability and labor advocates to develop an approach that can enhance workers’ wages and benefits without eroding the availability of long term services and supports.
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MRT #61: Home Care Worker Wage Parity Reminder
This is a reminder that implementation of the Home Care Worker Wage Parity law in New York City is effective today, March 1, 2012. Forms for Certified Home Health Agencies, Long Term Home Health Care Agencies and Managed Care Organizations certifying compliance with the law must be submitted by close of business today to HCWorkerParity@health.state.ny.us.
More information can be found at:

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