On August 12, the Kansas Department for Aging and Disability Services (KDADS) released a letter it sent to Department of Labor (DOL) Secretary Thomas Perez. The correspondence urges the Department to exempt home and community-based consumers who self-direct their own care from the recent home care rule that changes the way the Fair Labor Standards Act (FLSA) is applied to the companionship exemption and treatment of third-party or joint employment.
“The new DOL rule, as currently written, would work strongly against the principal of maintaining individuals in the least restrictive environment necessary to meet their needs and force our members into more restrictive institutional settings,” KDADS Secretary Kari Bruffett said in the letter. “We want to avoid the great deal of harm this new rule will do to Kansas consumers who receive personal attendant care and home health services.” KDADS estimates the rule will impact more than 41% of the state's Medicaid participants who receive home and community-based services (HCBS) and that are elderly, have physical disabilities, or have intellectual and developmental disabilities.
The DOL recently issued guidance regarding joint employment that indicates the state Medicaid programs may be considered joint employers with a consumer in a self-directed program, depending on the circumstances of the arrangement. (See WICs article, "DOL Issues Guidance on Third-Party Joint Employment Under New FLSA Rule," June 20, 2014.) Bruffet said KDADS believes that the new rule "will redefine the state of Kansas, KanCare [Managed Care Organizations] MCOs and the [Financial Management Service] FMS provider as joint employers along with the consumer," which will result in personal care attendant hours being rolled into a single weekly calculation. This means that personal care attendants that support multiple consumers would be limited to 40 hour work weeks before being required to receive overtime for hours beyond 40. Bruffet said this will create several unintended consequences, including placing consumers at a higher risk of reinstitutionalization, increasing administrative burden on consumers and their families, worsening the current workforce shortage problem, reducing earning potential for domestic service workers, negatively impacting small businesses, and hindering the state's ability to reduce its waiting list for HCBS.
The concerns expressed in the letter resonate with ANCOR members and the broader disability community. ANCOR has worked with other national organizations and stakeholders to urge the DOL to delay implementation of the rule, which currently has an effective date of January 1, 2015, to allow states time required to minimize the impact of the rule on people served.
The KDADS press release and letter are available here.