On Monday, the Department of Justice (DOJ) Civil Rights Division and Department of Health and Human Services (HHS) Office for Civil Rights sent a "Dear Colleague" letter (attached below) emphasizing the responsibility of states to implement the Department of Labor's (DOL's) new Home Care rule in a way that meets obligations of the Americans with Disabilities Act (ADA), specifically the Olmstead mandate. Olmstead is a Supreme Court case that was brought under the ADA in which the Court determined that people with disabilities have a right to be served in the most integrated, least restrictive settings appropriate. The DOJ Civil Rights Division has increased its involvment in and enforcment of potential Olmstead violations in recent years, resulting in a multitude of settlements with states that require states to make systemic changes to address violations.
The DOL Home Care rule narrows the use of the companionship exemption by excluding third-party employers from taking it and imposing a new threshold of time spent performing "care" activities by a worker. In some instances, it also interprets the state Medicaid program as a third-party employer, which has significant implications for determining overtime and paid travel time for workers. Because of the additional cost to state Medicaid programs created by the rule, several states have looked at options including cutting back on or restricting overtime or travel time permitted by workers.
The letter urges states to thoroughly analyze their home care programs to determine what changes will need to be made to comply with the rule. As part of this process, DOJ and HHS urge that states "consider whether reasonable modifications are necessary to avoid placing individuals who receive home care services at serious risk of institutionalization or segregation." It goes on to say, "A state's obligation to make reasonable modifications to its policies, procedures, and practices applies even when a home care program is delivered through non-public entities."
The letter notes that the implementation of across-the-board caps risks violating the ADA if they do not adequately account for the needs of individuals with disabilities and place them at serious risk of institutionalization or segregation. DOJ and HHS urge that states plan for circumstances where home care workers are scarce, people served have extraordinary needs that necessitate a single worker, and/or emergency situations where a scheduled second worker is not available and the person's support needs will only be met with the immediate authorization of overtime hours and pay. The letter strongly urges states to include an exceptions policy to any caps it considers imposing to ensure that people receiving services are served in a way that complies with the Olmstead mandate.