With Caregiver Pay Hike, States Warned About ADA Obligations
As new rules roll out mandating better pay for in-home care workers, federal officials say states must not compromise the rights of people with disabilities in the process.
Starting in January, home care workers will qualify for the first time for federal minimum wage and overtime protections. Now, the Obama administration is warning states not to forget the needs of people with disabilities — who often rely on in-home care providers — as they implement the new policy.
In a “Dear Colleague” letter issued this week, officials from the U.S. Departments of Justice and Health and Human Services said that states must be cognizant of their obligations under the Americans with Disabilities Act to provide services in an integrated setting.
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Specifically, states “should consider whether reasonable modifications are necessary to avoid placing individuals who receive home care services at serious risk of institutionalization or segregation,” wrote Vanita Gupta, acting assistant attorney general for civil rights at the Justice Department, and Jocelyn Samuels, director of the Office for Civil Rights at the Department of Health and Human Services.
In particular, some states are planning to place limits or caps on the number of hours that direct care providers may work, which could pose problems, officials said.
“We are sensitive to states’ budgetary constraints,” wrote Gupta and Samuels. “However, implementation of across-the-board caps risks violating the ADA if the caps do not account for the needs of individuals with disabilities and consequently places them at serious risk of institutionalization or segregation.”
Instead, Gupta and Samuels indicated that state policies must consider extenuating circumstances including potential worker shortages, instances where a scheduled worker is not available or cases where “consumers with extraordinary medical or behavioral needs may not be able to tolerate multiple workers in their home.”
The guidance letter comes as states work to comply with what has been a contentious rule from the start. Under a law dating back to the 1970s, in-home care workers have until now been classified much like baby sitters and exempt from many wage protections.
That will change at the beginning of the new year when most home care workers must be paid at least the federal minimum wage of $7.25 per hour and qualify for time-and-a-half for working over 40 hours per week under a new Labor Department rule.
The wage increase has led to concerns from states, industry groups and some disability advocates about added costs and unintended consequences for people with disabilities.
Heeding those worries, the Labor Department said this fall that it will delay enforcement of the new rule through June 2015. Subsequently, the agency said it will “exercise its prosecutorial discretion” to determine whether to bring enforcement actions for the period between July and December 2015.
Alison Barkoff of the Bazelon Center for Mental Health Law said the guidance issued this week is an “important tool” for disability advocates as states work to put the changes in place.
“If their state is considering any policies that limit, cap or restrict worker hours, advocates should ensure that the state is putting in place a process for people who could be placed at serious risk of institutionalization to be exempted from these policies,” Barkoff said.
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