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Recently Released Joint Guidance on FLSA

12/15/14

The US Department of Justice (DOJ) and the Department of Health and Human Services Office of Civil Rights (OCR) have just released guidance for states and other stakeholders working toward compliance with the Fair Labor Standards Act Home Care Rule. The guidance urges states to ensure that their FLSA compliance measures also take into account their obligations to comply with the Americans with Disabilities Act (ADA) and the Supreme Court’s Olmstead decision.  

Title II of the ADA prohibits discrimination by public entities in its services, programs and activities.  Title II’s integration mandate prohibits public entities from administering their programs in a manner that results in unjustified segregation of persons with disabilities.  Public entities are also required to make “reasonable modifications” to the policies, procedures and practices when necessary to avoid discrimination, unless such modifications would “fundamentally alter” its service system.  Public entities may violate Title II when they are directly or indirectly operating facilities and or/programs that segregate individuals with disabilities; financing the segregation of individuals with disabilities in private facilities; and/or through planning, service system design, funding choices, or service implementation practices, promoting or relying upon the segregation of individuals with disabilities in private facilities or programs. 

Thus, as the guidance makes clear, Title II’s obligations extend not only when states that are directly operating home care programs but also “even when a home care program is delivered through non-public entities.”  Such entities could include managed care entities and home health agencies.  

To prevent violations of the ADA and Olmstead, DOJ and OCR direct states considering caps or restrictions on overtime and travel time to implement “reasonable modifications” to these policies in order to prevent placing participants at serious risk of institutionalization or segregation.  These reasonable modifications should include a robust exceptions process to overtime & travel caps, plus a monitoring system to ensure that implementation of the restrictions do not place individuals at serious risk of institutionalization or other harm.

Highlights of this guidance are quoted below:

[T]he ADA and the Olmstead decision are not limited to individuals currently in institutional or other segregated settings. They also apply to persons at serious risk of institutionalization or segregation. For example, a public entity could violate Olmstead if it fails to provide community services, or reduces those services, in a way likely to cause a decline in health, safety, or welfare leading to an individual’s eventual placement in an institution.

Other states are planning to comply with the new rule by setting limits or capping direct care workers’ hours or travel time. We are sensitive to states’ budgetary constraints. 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. For example, if a state prohibits home care workers from exceeding 40 hours a week of work, individuals who need more than 40 hours a week of care may not receive their full hours where home care workers are scarce. And even where home care workers are available, consumers with extraordinary medical or behavioral needs may not be able to tolerate multiple workers in their home. Emergency situations may also arise where a scheduled second worker is not available and the individual’s home care support needs would not be met without immediate authorization of overtime hours and pay. 

Therefore, states need to consider reasonable modifications to policies capping overtime and travel time for home care workers, including exceptions to these caps when individuals with disabilities otherwise would be placed at serious risk of institutionalization.Whether a reasonable modification is needed and what the modification should be depends on the specific factual circumstances. States should also consider implementing processes that reliably and expeditiously enable individuals with disabilities to obtain cap exceptions when they are warranted.  Finally, where implementation of the Home Care Rule disrupts services, states should collect and monitor data to ensure that the service disruption does not place individuals with disabilities at serious risk of institutionalization.