Non-Enforcement is Not a Solution! DOL Must Delay Implementation of the Companionship Exemption NOW!

Despite recognizing the issues that Disability Rights activists have brought to their attention regarding the Companionship exemption changes, the Department of Labor (DOL) is still planning to move forward with implementation of these changes in the Fair Labor Standards Act.

Disability Rights activists have been fighting to delay the implementation of the rule changes because there is simply no funding to support the changes. These changes require attendants to be paid overtime for any hours they work over 40 hours, plus travel time. There is no question that our attendants deserve the extra compensation but Medicaid will not pay for these extra costs. As a result, providers will no longer allow attendants to work over 40 hours per week. This harms attendants because many of them work far beyond 40 hours a week and depend on that extra income. This also harms people with disabilities and seniors because it puts us at risk of institutionalization, because we will not be able to receive the assistance we need to live in the community if our attendants cannot work those hours. There is already a shortage of attendants, so it may be difficult or impossible for us to get another person to cover hours that our attendants will no longer be allowed to work. The threat of institutionalization as a result is real – even DOL identified that some people would be forced into institutions because of these rules.

On Tuesday, October 7, Disability Rights activists called upon DOL, again, to delay the implementation of the Companionship changes going in effect on January 1, 2015. Just hours after Disability Rights activists began contacting DOL to delay the implementation, DOL announced that it will not enforce the Companionship changes until June 30, 2014. In the 6 months following June 30th, DOL will have “prosecutorial discretion” to delay enforcement against states and other providers on a case by case basis. During this delay period DOL will be providing “extensive” outreach and technical assistance on the Companionship changes.

DELAYING ENFORCEMENT DOES NOT HELP!

Agreeing not to enforce a law is not the same as delaying the implementation of a law!

Essentially DOL is acknowledging that their guidance on these changes has been insufficient and that states and other providers do not understand how to comply or have the funds to do so, but they’re implementing this new rule anyway and agreeing not to punish those who break the law, for a little while.

While DOL is patting itself on the back for doing essentially nothing to alleviate the serious problems that will be detrimental to both attendants and people with disabilities, the Disability Community is enraged because we have offered DOL a solution that will work – DELAY IMPLEMENTATION!

DOL argues that it delayed implementation for 14 months, but in reality, DOL spent those 14 months conducting fact finding processes which should have been done before the rule was ever drafted! There has not been sufficient time for states and providers to understand this new rule, much less fund it. In fact, DOL did not even issue guidance on this rule until three months ago, in July of 2014, after many states completed their budgets and legislative sessions had ended! This left states absolutely NO TIME to plan for these major changes in systems and funding!

Instead of delaying implementation of these confusing and unfunded changes until states and providers have a chance to fully understand and adequately pay for them, DOL has decided to move forward with them.  DOL’s brilliant solution is to implement changes that no one can understand or afford and simply promise not to enforce these changes.

A promise not to enforce the changes does not save states and other providers from liability!

Individuals can still bring a private action against any state or provider that does not comply with the changes. Yesterday the Supreme Court began hearing oral arguments in Integrity Staffing Solutions v. Busk – this case illustrates that workers can bring suits to enforce their rights. Just because DOL is promising that it will not bring suit does not mean that workers won’t.

No state or provider is going to take that risk! States and providers will simply cap the hours that attendants can work at 40 hours to avoid any chance of being sued by workers.

On top of that, providers are under contracts that require them to abide by all laws and regulations, whether or not DOL is enforcing them. If the law is on the books, providers must follow them or be in violation of their contracts. So even if a provider were willing to take the risk of being sued by a worker (which is highly unlikely), providers certainly won’t willingly breach their contracts and open themselves up for liability!

Delaying implementation is the only responsible solution, otherwise attendant hours will be capped and too many people will experience the detrimental impact of these changes.

If DOL continues to refuse to delay implementation, the responsibility falls to the states to figure out how to pay for these changes so that the lives of people with disabilities and attendants are not harmed.

Luckily in New York we have a Governor who has expressed his adamant commitment to people with disabilities. In fact, Governor Cuomo has stated that “people with disabilities have the right to receive services and supports in settings that do not segregate them from the community; it’s a matter of civil rights.” I couldn’t agree more, but without DOL delaying implementation of the companionship rule changes, people with disabilities are at risk of being segregated from the community. Governor Cuomo may not want to see this happen, however, we have not been presented any plan for how these changes will be funded in order to prevent it! If DOL refuses to delay implementation, it is New York’s duty to protect the rights of people with disabilities and attendants.

If that’s the case, then come January I have one question: Governor Cuomo, how do you plan to pay for this?