Disability rights groups file briefs in caregivers, worker protection case

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Fair Labor Standards

Some of the nation’s largest disability rights groups are backing home health care providers in their lawsuit opposing the Obama Administration’s rules requiring overtime and minimum wage protections for caregivers.

Under a 1974 amendment to the Fair Labor Standards Act, in-home caregivers are exempt from minimum wage and overtime protections. In 2011, the Department of Labor proposed new regulations closing this exemption for workers hired by third parties, which represents nearly 90 percent of the nation’s estimated two million caregivers.

The DOL finalized these rules two years later and they were set to go into effect at the beginning of 2015. That plan hit a roadblock in December 2014 when the U.S. District Court for the District of Columbia struck down the rules, on the basis that FLSA bars the the Obama Administration from distinguishing between caregivers hired by third-party employers and households.

The DOL appealed the case to the U.S. Court of Appeals for the District of Columbia Circuit.

On April 6, ADAPT and the National Council on Independent Living filed an amicus brief in the case, urging the DC Circuit to uphold the decision. The brief does not discuss the minimum wage protections, instead focusing on the potential unintended consequences of the overtime rules.

As described in the brief, many people with disabilities require assistance from caregivers far more than 40 hours per week. Therefore, if home-health care agencies are required to pay caregivers at a 1 ½ pay rate for hours beyond the standard 40-hour worker week, providers will likely cut services.

Another potential scenario is that states will cap the number of hours that caregivers, who are often are paid through state Medicaid programs, can work. As a result, people with disabilities may need to hire an additional caregiver, thus disrupting the continuum of services.

Multiple states have already made public their intention to cap hours in response to the new rules, which do not provide any additional funding to states or providers to make up the expenses of complying with the regulations.

“The new rule imposes increased costs that State Medicaid programs will not pass, which will result in capping attendant hours,” the amicus brief states. “As hours are capped, disabled people will be forced back into institutions, in violation of their rights. The new rule will have the effect of making home and community based services, and with them, the rights of people with disabilities to live in freedom, an option, not a right.”

ADAPT and the NCIL are not the only disability rights groups that have spoken out against the regulations. The Disability Rights Education and Defense Fund, for example, addressed similar concerns in public comments submitted to the DOL in 2012.

Although the case is on appeal, the Obama Administration is encouraging states to take measures to comply with the rules. In a letter sent to state governors March 20, DOL Secretary Thomas Perez encouraged states to allocate new money in their budgets to comply with the overtime and minimum wage protections.

“We have stressed two key implementing principles – protecting the rights of workers and supporting the individuals who rely on home care services by not interfering with the models of care that allow them to stay in their homes and their communities,” Secretary Perez wrote in the letter. “These twin principles guide our implementation – as they should guide yours – because fair wages for home care workers and independent living are not mutually exclusive.

“In fact, they build on one another, because a qualified, stable workforce is critical to ensuring that seniors and individuals with disabilities can remain in their homes. “