New rule could impact home based services and personal assistants

On January 1, 2015, a new federal rule administered by the U.S. Department of Labor goes into effect. The rule requires that personal assistants, or home care workers, should be paid overtime if they work more than 40 hours a week. This rule impacts every state. Personal assistants, who are a key link to independence for people with disabilities, deserve overtime for the important work they do. Yet, without proper revenue, both consumers and personal assistants could be hurt by the new rule.

The state of Illinois is considering a DRAFT policy that caps the number of hours personal assistants can work at 40, with three exceptions. The three exceptions for approved overtime would be:

1) for parent providers of PA service
2) for Exceptional Care cases and
3) for people who have Determination of Need (DON) scores of 70 or over.

Because the rule is new, few other states have overtime policies. California has imposed a flat cap of 61 hours for personal assistants, and Oregon is considering a cap of 52 with some exceptions, including one for rural Personal Assistants since the worker pool is so small.
 
Illinois’ proposed cap of 40 hours could cause real problems for consumers who have personal assistants that work for more than one person, for more than 40 hours a week total. If the personal assistant is forced to reduce the number of hours worked, then a person with a disability with whom the PA works is liable to receive less support. The consumer will be forced to hire a new PA, who has not reached the 40 hour threshold, or will suffer a gap in support services. In addition, personal assistants, who currently struggle to earn fair wages, stand to lose income if the hours are capped.   
 
The draft policy also states that consumers who allow overtime by their personal assistant more than three times will be forced to have home health agencies take over management of their Home Service Program services. This is regardless of whether the overtime was accidental or unintentional.
 
The Illinois Department of Rehabilitation Services supports the new cap. One reason is that the Home Services Program has a $47 million deficit through June 30.  According to Illinois officials, not allowing overtime except for a few cases will save money. However, Access Living believes that the cost of implementing overtime between January 1 and June 30 would be $4 million, less than 10% of the $47 million.
 
The draft Illinois policy is not final.  The state seeks to make the rule final before January 12, when the new administration comes into office. The new federal rule will not be enforced until July 1.
 
Nevertheless, Access Living has learned that at least one managed care company has informed a Home Services consumer that the 40 hour cap is in effect.  The consumer was told to cap the PA services, provided by a parent, at 40 hours, and hire a second PA to provide additional service.  The managed care companies have since been reminded by the state that there is no cap yet in effect, since the policy is just a draft.

Again, this new rule has the potential to negatively impact people with disabilities who receive Home Support services, and personal assistants who deliver the services.  People in the community are urged to contact the Director of the Department of Rehabilitation Services to share your concerns.  The draft policy is not yet final.  There is time to contact the director before the policy is finalized in early January. Please contact the director at david.hanson@illinois.gov.