By Philip Bennett

The Federal Department of Labor (DOL) has an-nounced that the change to the Fair Labor Standards Act, which will sharply limit the com panionship exemption and require home-care workers employed by a third party, such as an agency, be paid minimum wage and time-and-a-half pay for overtime, will go into effect Jan. 1, 2015.

“Many American families rely on the vital services provided by direct-care workers,” said Secretary of Labor Thomas Perez. “Because of their hard work, countless Americans are able to live independently, go to work and participate more fully in their communities. Today we are taking an important step toward guaranteeing that these professionals receive the wage protections they deserve while protecting the right of individuals to live at home.”

However, the DOL has taken no action to secure funding for this change.

A spokesperson for ADAPT (American Disabled for Attendant Programs Today (, a long-time disability rights group, called the DOL statement “propaganda” and asserted the rules change will be “devastating” and result in countless numbers of people with disabilities being forced to move into expensive nursing homes and other institutions. ADAPT calls on the public to join them in demanding the DOL delay implementation of the change until a compromise can be reached.

The American Association of People with Disabilities (AAPD), while supporting the change, admits there is not yet a plan “to minimize… disruption to the people who use consumer-directed programs…. We call on organized labor to work with the disability and aging communities [and the Obama Administration] must make certain that any unintended consequences stemming from these changes do not result in institutionalization.”

Janis Durick, owner of From the Heart Companion Services, a home-care provider in Trafford, Pennsylvania which pays time-and-a-half for overtime admits “we lose money for every hour of overtime we pay — once you factor in the cost of things such as workers compensation, bonding, unemployment tax and social security tax…. We rarely assign overtime.” The national associations for state Medicaid, Aging and Disability directors, in a joint statement, called the cost to consumers of implementing the change “prohibitive” if funding is not provided. “We are deeply disappointed that the Administration ultimately failed to adopt a rule that balances fair compensation for home-care workers with… [making sure] people with disabilities maintain their independence at home.”

Rick Surpin, chairperson, Paraprofessional Healthcare Institute (PHI) and Independence Care Systems president and Jodi Sturgeon, president, PHI, said in a joint statement that people with disabilities needing home- care support are “worried [the change] will make it harder for a high-end user of services to find the number of people required to provide the necessary assistance, and that personal assistants who may work 50-60 hours a week today, may have to work less and not make enough in overtime to compensate for the lost hourly income. We believe that they are right on both counts.” They cite Cooperative Home Care Associates, a home-care provider which pays the overtime rate but which experienced “runaway cost” of doing so. CHCA manages the cost by “basically scheduling aides 48 hours per week, one week and 36 hours the next.”
Carrie Ann Lucas, a Colorado attorney who has muscular dystrophy and is the single parent of four adopted children with disabilities said, “The new rules are simply fair for our attendants. They are entitled to fair wages and working conditions. I understand that the rules create issues for some consumers, but it is simply not ethical to have our workers receive less than fair pay.”

Yet, those who the law is intended to benefit are concerned. A home-care worker with ICS who currently works from 48 to 60 hours per-week every week asks, “How does this scheduling help my fellow workers and me? It still means a much smaller paycheck on the average. And even if I get a second job to make up for the loss, how can I ask my second boss to schedule me so I don’t conflict with my first job and its weird hours?”

The daughter of a woman who has live-in aides was told by the agency she uses that they will have to change aides every three and one half days so they don’t go over 40 hours. In addition to the problems this poses for the aides it also breaks the continuity for the patient.

A nationwide survey of home- care agencies and consumers on what they’ll do after the change takes effect is available on-line at http://emarket.franchise.or /CompanionCareReport.pdf.

Laura Fortran, Principal Deputy Administrator Wage and Hour div

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