For people who don’t use attendant services, this issue may seem complicated. We have been asked some good questions that people hearing about this issue for the first time might also have. Here are those questions and our answers:

1. Why are you opposing good wages for attendants?
We aren’t. The disability community has fought for better attendant wages and benefits for years. We continue to support good wages and benefits for attendants. After all, these attendants are the people who allow us to live our lives. They don’t just keep us out of nursing facilities and other institutions. These are the people that allow us to go to school, to go to work, to go to church, to participate in everyday life. Without them, we would be literally stranded in bed and unable to meet even our most basic needs. We value attendants more than anyone else.

Some people have suggested that we oppose minimum wage for attendants. That’s not true! Although there is the potential for that requirement as originally proposed by the Department of Labor to have some negative impact on people with disabilities in very specific circumstances, we don’t oppose the requirement that attendants be paid minimum wage.

We are, however, concerned that other changes such as the requirement that attendants be paid overtime will have a serious detrimental impact on people with disabilities and won’t improve the lives of attendants. Part of the problem is that the approach to changing the system simply through regulation at the Department of Labor doesn’t change the zero-sum model for funding the services particularly through Medicaid. Basically, funding is fixed.

The impact of that is significant. According to the Department of Labor’s own analysis, under these proposed rules, people with disabilities will run the risk of increased institutionalization because the increased cost of providing the service will force people into "other options," such as institutionalization. This change also doesn’t address the funding mechanisms for these services. It is absurd that the Department of Labor suggests that Medicaid rates will increase to cover the increased cost. That’s simply not going to happen! Medicaid rates simply won’t cover the cost of overtime.

The cost of over time could be significant. Here’s an example. On Long Island (in New York State), there is a living wage requirement that attendants be paid $14.61 per hour, but the state only allows a total of $15.82 to be paid for all attendant wages and benefits in the consumer directed personal assistance program. Time and a half is $21.91 which just isn’t sustainable under the state’s Medicaid rates. Consequently attendants’ hours will be capped at 40 per week, resulting in lost attendant earnings.

That’s right! Although attendants will have the right to receive over time, in situations where attendants are currently working more than 40 hours in a week, they will see their weekly wages cut if this rule is implemented as proposed.

2. Isn’t this policy inconsistent with our efforts to eliminate sub-minimum wage for people with disabilities?

No. Public policy for sub-minimum wage is applied to people with disabilities based on WHO they are at the class of people (people with disabilities). No other class of people may be paid less than minimum wage. There are no labor rules that allow women to be paid less than minimum wage. The runner labor rules to allow people of color to be paid less than minimum wage.

The companionship exemption on the other hand is based on the type of work being done. There are often different rules for different types of workers. This is a generally accepted practice. For example, restaurant workers have different wage rules.

In both cases, we are raising concerns about the negative impact of existing and proposed public policy on people with disabilities, including segregation at work or through the reduction of community based opportunities.

Again, we are not opposing the rights of attendants! We just want the Obama administration to address our concerns about the negative impact that this approach will have on people with disabilities.

3. What about private pay individuals? Will these rules affect them?

The Department of Labor has told us that as a "compromise" with the disability community, they will not enforce the new rules for private pay individuals. That's not a compromise. In fact, it will have a serious adverse impact on people with disabilities who use Medicaid attendant services.

Attendants who work for people who pay for their services privately will still be allowed to work more than 40 hours, unlike attendants in the Medicaid program, who will be capped at 40 hours a week working for a single agency or individual. Those private pay jobs will be at a premium. This will result in attendants who work for people with disabilities whose services are paid through Medicaid, leaving the Medicaid system to work for people who can pay privately and given larger blocks of hours. This will worsen the workforce shortage in Medicaid funded programs and lead to even more people being institutionalized against their will due to a lack of attendants.

4. Are there other issues?
Absolutely! We are just trying to get to the table for a substantive discussion. There are other concerns about how the Fair Labor Standards Act gets applied. For example, under FSLA workers cannot "volunteer". We don’t know what impact that will have on the availability of informal supports. We have questions about the impact on creative living arrangements often used in the developmental disability community. DOL also didn’t adequately consider the impact that this policy will have on consumer directed services. We think a lot of the assumptions they made based on traditional home care don’t hold true in the consumer directed model. The impact on paid family caregivers hasn't been reviewed or even considered by DOL. The Obama administration needs to consider how these rules affect that system for providing long term services and supports before they implement any rules.

Ultimately, the basic problem is that the Obama administration and its Department of Labor did not consider people with disabilities to be an important stakeholder group to be consulted with in the development of these rules. The Department of Labor worked with unions, worker organizations and organizations focused on healthcare, but they didn’t work with the disability community.

The Department of Labor only started having substantive conversations with the disability community AFTER the proposed rules were published. That meant that they couldn’t have any direct conversation about the proposed rules. While the disability community could raise concerns, the Department of Labor couldn’t have conversations with them and talk through the issues. Now, the rules have gone to the Office of Management and Budget in the same situation applies.

The disability community simply wants to be at the table in the development of rules like this, which have such a serious impact on our daily lives and our ability to live independently in the community. The disability community including the National Council on Disability have urged the Obama administration to use a negotiated rule-making process which would bring the disability community to the table with other stakeholders, so we could negotiate with the final rules would look like.

5. What do you hope to accomplish?
We hope that the Obama administration will recognize that the Department of Labor needed to better engage the disability community effectively on this proposal and they will bring disability advocates to the table.

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