The Department of Labor (DOL) published a Final Rule on October 1, 2013 extending minimum wage and overtime pay protections under the Fair Labor Standards Act (FLSA) to most home care workers (who may have job titles such as home health aide or personal care assistant) who provide essential assistance to people with disabilities and older adults. On August 21, 2015, the U.S. Court of Appeals for the D.C. Circuit issued a decision upholding the Final Rule. On Friday, September 18th from 2:00-3:00pm Eastern Time, senior leadership from the U.S. Department of Labor’s Wage and Hour Division and Office of the Solicitor will hold a webinar to discuss the Home Care Final Rule. Presenters will provide an overview of the Final Rule as well as the Department’s guidance regarding joint employment in domestic service employment under the FLSA and the application of the FLSA to shared living programs. Our comments will address questions we have received from states, including about the home care litigation.
TO REGISTER FOR THE WEBINAR:
Please click https://www.eventbrite.com/e/home-care-final-rule-implementation-webinar-for-states-registration-18538483102 to register for the webinar.
Once you register, you will receive an email with the information you need to access the webinar.
There will be a question and answer period after DOL’s presentation. If you would like to submit a question(s) in advance, please email it firstname.lastname@example.org at your earliest convenience. During the webinar, we will respond to as many questions as possible.
FOR MORE INFORMATION:
Information about the Home Care Final Rule is available athttp://www.dol.gov/whd/homecare/.
Information about the litigation related to the Home Care Final Rule is available at http://www.dol.gov/whd/homecare/litigation.htm.
U.S. Court of Appeals Unanimously Upholds DOL Home Care Rule
|Thank you for your engagement with the Department of Labor’s Wage and Hour Division regarding the Home Care Final Rule.On Friday, August 21, the U.S. Court of Appeals for the District of Columbia issued a unanimous decision upholding the Home Care Final Rule. DOL issued the statement below, which is available on our website at http://www.dol.gov/whd/homecare/litigation.htm
This site will be updated with any changes related to litigation, so please check back for updates.
Today’s decision from the U.S. Court of Appeals for the District of Columbia is vital to nearly two million home care workers, who will now qualify for minimum wage and overtime protections. The decision confirms this rule is legally sound. And just as important, the rule is the right thing to do — both for employees, whose demanding work merits these fundamental wage guarantees, and for recipients of services, who deserve a stable and professional workforce allowing them to remain in their homes and communities.
The DOL has led an unprecedented implementation program to help employers prepare for compliance, including offering an extensive and individualized technical assistance program, providing a 15-month period before the effective date to aid compliance, and adopting a time-limited non-enforcement policy. DOL has repeatedly encouraged states and other employers to take the necessary steps toward implementation. The Department continues to stand ready to provide technical assistance to states and other entities as they implement the Final Rule.
|Washington, DC (June 26, 2015)
The Centers for Medicaid and Medicare Services (CMS) issued guidance on how they intend to address “heightened scrutiny” for settings that are subject to the home and community based services (HCBS) rule that went into effect on March 17, 2014. The guidance restates the standard for settings that are presumed institutional (located in a building that is also a publicly or privately operated facility that provides inpatient institutional treatment, or in a building located on the grounds of, or immediately adjacent to, a public institution). Additionally, any setting which has the effect of isolating individuals will be presumed to be institutional. For any of these instances, a state may submit evidence to overcome the presumption and demonstrate how the setting does meet the HCBS standards set forth. The new rules also offer states the option to develop “tiered standards for residential settings” which will allow states to “close the front door” to some providers while allowing existing providers of the same services to continue. This means that a state could set one compliant standard for existing providers and set a different, higher standard for new providers.
The “correct” quality assurance program will always be a question until CMS requires states to standardize their Managed Care processes among MCOs in each state. We all have the opportunity to discuss standardization now, which will not come around again for years. Please see the below information from ANCOR. I encourage people to comment on the CMS proposed rules. CMS Issues
Landmark Proposed Rule on Medicaid Managed Care
On June 1, the Centers for Medicare and Medicaid Services (CMS) issued a proposed rule titled “Medicaid and Children’s Health Insurance Program (CHIP) Programs; Medicaid Managed Care, CHIP Delivered in Managed Care, Medicaid and CHIP Comprehensive Quality Strategies, and Revisions Related to Third Party Liability.” The agency states that this proposed rule would modernize the Medicaid managed care regulations to reflect changes in the usage of managed care delivery systems.
Home care providers will want to be aware that the proposed rule proposes to add a definition for long term care support services (LTSS). The CMS proposal defines LTSS as “services and supports provided to beneficiaries of all ages who have functional limitations and/or chronic illnesses that have the primary purpose of supporting the ability of the beneficiary to live or work in the setting of their choice, which may include the individual’s home, a provider-owned or controlled residential setting, a nursing facility, or other institutional setting.” CMS states that they intend for community based services within the scope of this definition to be largely non-medical in nature and focused on functionally supporting people living in the community. Examples of what CMS would consider community based LTSS include Home- and Community-Based Services (HCBS) delivered through a section 1915(c) waiver, section 1915(i), or section 1915(k) state plan amendments, as well as personal care services otherwise authorized under the state plan.
HCAOA also notes that CMS is seeking to amend the existing regulation requiring each state to establish a credentialing and re-credentialing policy that addresses all the providers, including LTSS providers, covered in their managed care program regardless of the type of service provided by such providers.
Comments on the proposed rule will be accepted through July 27, 2015. A copy of the proposed rule can be found at http://www.regulations.gov/#!documentDetail;D=CMS-2015-0068-0001
New Rates for July 1, 2015
APD announced that effective July 1, 2015, Personal Supports QH, Personal Supports Day, Support Coordination and CDC+ Consultant will all have an increased rate. Please see the link below for all the new rates. The changes to the cost plans and budgets will be made electronically and will not require the WSCs to redo any service authorizations and will not require the Regions to re-approve any service authorizations. That is the good news!
1) iBudget will be brought down on July 1st so the changes can be made. All FY 15-16 cost plans must be in approved status. Any cost plans that are in draft, or pending review status will have to be deleted by IT and any changes that have been made to those plans will be lost.
2) Please review all cost plans that are Pending Area Office Review for FY 15-16 and get them to approved status as soon as possible. If the reason for the pending review is due to a rejected service authorization that you are unable to resolve, complete a help desk ticket.
3) State Office staff will be reviewing any cost plans in Pending State Office Review to get them in approved status.
4) If support coordinators have consumers who currently have a FY 15-16 budget, however; they will not have a cost plan built prior to 7/1/15; the support coordinator will need to work with Region staff to get the budgets adjusted manually. Since those cost plans may or may not come for Region review, they will need to notify you who those consumers are.
5) Please encourage support coordinators to stop making any changes to cost plans after June 28, 2015 unless there is an emergency. This will give both the Region and State Office staff time to assist with getting all plans into approved status.
New Hampshire House Passes First-In-The-Nation Legislation To End Payment of Subminimum Wages To People with Disabilities
New Hampshire House Passes First-In-The-Nation Legislation To End Payment of Subminimum Wages To People with Disabilities
Press Release, April 15, 2015
CONCORD, NH – Today the New
Hampshire House of Representatives passed SB 47. New Hampshire becomes the first state in the country to repeal statutes that permit employers to pay persons with disabilities less than the state minimum wage simply because they have a disability. SB 47 received unanimous bipartisan support in both the house and the senate.
“SB 47 is a historic policy statement that reflects the current approach to hiring persons with disabilities that has evolved since the 1940’s in New Hampshire – every person with a disability can be competitively employed with the right supports and right job match,” said Chris Rueggeberg, Policy Director for the New Hampshire Council on Developmental Disabilities. “Paying people with disabilities subminimum wages is not necessary or helpful for them to get a job. They can be hired on their merits and abilities,” added Rueggeberg.
SB 47 prime sponsor Senator Hosmer has hired people with disabilities at his AutoServ business for the past 20 years. “The people I hire improve the whole culture and working atmosphere for all my employees,” said Senator Hosmer. SB 47 repeals outdated statutes and outdated approaches to hiring persons with disabilities that date to 1949. Employers in New Hampshire no longer pay persons with disabilities a subminimum wage. Sheltered workshops are closed. Disability rights organizations, rehabilitation professionals, persons with disabilities working at competitive wage jobs and their employers, the NH Labor Department, the NH Department of Health and Human Services, and Vocational Rehabilitation and Services for Blind and Visually Impaired in the NH Department of Education all worked to pass SB 47. “I’m very pleased that the House has approved SB 47. Last year, when I discovered that it is was legal in New Hampshire to pay persons with a disability less than the minimum wage simply because of their disability I introduced legislation to study this issue. The
study committee that I chaired unanimously recommended legislation to ban this practice in New Hampshire, ” said former State
Representative Chris Muns.
The New Hampshire Council on Developmental Disabilities is a federally funded state agency that supports public policies and initiatives that remove barriers and promote opportunities in all areas of life. The Council carries out its mission through education, advocacy and the funding of innovative projects that make a difference in people’s lives. Find out more at http://www.nhddc.org.
This is a follow up to the DOL emails we sent earlier today. After consideration of the parties’ pleadings, the arguments of counsel and relevant law, and the entire record in this case, plaintiffs’ motion for a partial summary judgment is GRANTED, defendants motion is DENIED, and the Department of Labor’s Third Party Employer regulation scheduled to go into effect on Jan 1, is VACATED. See below for a summary on the decision.
The United States District Court for the District of Columbia has today issued a partial summary judgment on two pieces of a lawsuit filed by the Home Care Association of America and other plaintiffs related to the Department of Labor’s Home Care Rule. Please note that this information is not legal advice, and is shared after a swift and preliminary review of the decision.
The decision notes that after consideration of the parties’ pleadings, the arguments of counsel and relevant law, and the entire record in this case, plaintiffs’ motion for a partial summary judgment is GRANTED, defendants motion is DENIED and the Departments Third Party Employer regulation scheduled to go into effect on Jan 1, is VACATED.
The largest area implicated by this decision is the third party employer regulation, which withdrew the availability of the companionship and live-in caregiver exemptions from third parties.
As you know, the companionship exemption was impacted in two important ways by the Home Care rule. First, the rule established that the companionship services exemption is not applicable when the employee spends more than 20 percent of his or her workweek performing care services. This portion of the regulation is NOT impacted by this decision, so the companionship exemption is available only when this percentage test is met.
Second, the rule set forth that the companionship exemption is not available to third party employers. This portion of the rule, called the Third Party Employer regulation, is impacted by this court decision by allowing third party employers to avail themselves of the exemption. This means that, for situations meeting the definition of and test for companionship, workers can receive straight pay, not overtime for work over 40 hours/week even when there is a third party employer.
Live in Exemption
Like the Companionship exemption, the DOL rule removed the availability of the live-in caregiver exemption from third party employers. This ruling allows third parties to utilize the exemption, enabling straight pay for live-in caregivers, including for those hours worked over 40. For details on what constitutes a “live-in” domestic service worker and other conditions of the exemption, see Fact Sheet #79B: Live-In Domestic Service Workers Under the FLSA. http://www.dol.gov/whd/regs/compliance/whdfs79b.htm
While this is decision is important, this case has not been fully decided (there are other counts to be considered by the court) and there will likely be appeals filed, even on this limited judgment. As a result, states should remain vigilant in their planning and budgeting in the event that, at the conclusion of these legal proceedings, the original rule will be in full force and effect.
NASDDDS will continue to closely monitor developments and keep you apprised.
To read the court’s decision, visit: