Tying disability rights to an effort to undermine wages for the HSP workers is, in Access Living’s eyes, unacceptable. In an industry where worker turnover is over 60%, we know that a stable workforce is incredibly important to the 27,000 people with disabilities ages 18-59 who use HSP to direct and control their in-home personal care services. We, along with five other Centers for Independent Living and SEIU HCII, issued a statement a t this link to make our position clear: we are being forced into a bait-and-switch. The AP also carried a story at this link covering the challenges for HSP customers and providers.
As it now stands, the HSP overtime policy with enforcement date of May 1 requires:
• That every HSP customer have a backup PA on record
• That HSP IPs work a max of 40 hours per week, unless they work for a customer who got approved for an exception
• That HSP customers can approve overtime for their IPs ONLY if they have a) a backup IP on file, b) Being Alone hours on their service plan AND one of the following three items: Exceptional Care Rate, DON score of 70, or court ordered service plan
• No exceptions for live-in providers (including parents, sibling, etc)
What are the numbers involved? In calendar year 2015, 8,611 HSP customers utilized more than 40 hours per week. 8,488 IPs worked more than 40 hours per week. DRS has reportedly only approved a few hundred HSP customers to allow them to let their IPs do overtime. DRS’ latest numbers reportedly say that about 5,100 HSP customers are eligible for overtime, but actually only a few hundred have done the necessary paperwork to secure overtime approval. This begs the question of whether ALL the HSP customers eligible for overtime approval understand their rights and the process of applying for overtime.
While some may think this fight is all about union issues, the truth is that there’s a lot to worry people with disabilities. The HSP overtime policy presents issues for people with disabilities because:
• IPs who work more than 40 hours per week, for more than one customer, are being asked to pick which customers to drop hours on, so as to cut back to 40. This is creating cases like that of King Solomon “splitting the baby.” This infringes upon consumer control of whom to hire/fire and for how many hours.
• Customers who lose their IPs due to the cap must find new IPs, which can create a crisis given that the IP application package can reportedly take up to 4 months for DRS to review before the final processing. There is no guarantee that IPs who must drop the hours can continue working for that customer until the customer finds replacement IPs.
• In areas of the state with lower numbers of available IPs, customers will have a more difficult time finding replacement or supplementary IPs.
• Live in providers like parents or siblings are not granted an exception unless their HSP customer qualifies and applies to approve overtime.
• The hard cap of 40 will be a challenge for IPs who work overtime to help with abuse/neglect or immediate health issues like a dirty diaper. While the State says it will allow some overtime exceptions for emergencies, it’s not clear that there will be exceptions granted for those reasons.
• DRS maintains that it will solve problems on a case by case basis at the Central Office. However, some customers and IPs have reported difficulty in getting DRS on the phone to discuss problems productively.
• IPs who work too many instance of unapproved overtime will be dropped from HSP. However, it is unclear how the State will meet the needs of customers whose IPs have been dropped, nor is it clear that the customers will be alerted in advance that their IPs are being dropped, with enough time to find new IPs.
• The policy contains no language about specifically how customers will be notified of their rights under Olmstead and how this new policy can cause an issue with their right to live in the community.
Ultimately, raising the cap to beyond 40 hours a week will create the least havoc. If the state implemented overtime with no caps, the cost is only $7 million a year. Plus, people with disabilities need to see an exceptions process that is not so rigid, and more robust. However, we now find ourselves faced with a question of social justice: are disability rights or labor rights more important? The answer for us is that both are important and a well-performing program will respect both. Every state in the nation has been struggling to ensure they have a good overtime policy, some with better success than others.
What if you have concerns? HSP customers with concerns about their ability to comply with the overtime policy should contact their DRS counselors ASAP. You may also contact your local Center for Independent Living for help (see www.incil.org to check the CILs that serve each county). Access Living’s Home and Community Ombudsman Program can also respond to questions or difficulties with this policy and help you advocate if you are an HSP customer; call (312) 640-2152 or firstname.lastname@example.org. HSP IPs (workers) should contact the SEIU HCII Member Resource Center; see their website here .
If you know someone who is an HSP customer or IP, please help by making sure they are on top of this issue. The overtime policy will continue to be monitored, and we ask people to please communicate where they are having difficulty.