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New Federal Rules Will Disrupt Care For Disabled Kansans, State Officials Say

A state official charged with overseeing Medicaid-funded services that help people with disabilities live in community-based settings rather than in nursing homes said Tuesday that coming changes in federal wage and hour rules are likely to increase costs, reduce access to care and give beneficiaries less say in deciding who will provide their care.

“We have great concerns about this,” said Kansas Department for Aging and Disability Services Secretary Kari Bruffett, testifying before a Kansas Statehouse meeting of the Robert G. Bethell Joint Committee on Home and Community Based Services and KanCare Oversight.

The changes, which were first announced by the U.S. Department of Labor in September 2013, are set to take effect the first of the year. They require states to pay attendant care workers overtime if they work more than 40 hours a week.

Attendant care and other domestic service workers previously were excluded from minimum wage and overtime protections under a “companionship services” exemption to the Fair Labor Standards Act. The exemption originally was meant to cover casual babysitters and workers employed to provide companionship to the elderly or people with illnesses, injuries or disabilities.

But with the growing demand for long-term home care, the labor department narrowed the exemption because it said workers who provide home care services perform increasingly skilled duties and should be considered professional caregivers.

In announcing the changes, the department said that nearly two million home health aides, personal care aides and certified nursing assistants would now receive “the same basic protections already provided to most U.S. workers.”

Bruffett said the changes are expected to have little effect on home health companies that already pay their employees an hourly wage and have long been subject to laws governing overtime.

But in Kansas, she said, most of the state’s Medicaid-funded in-home services are based on an assessment of each individual’s needs and a formula for calculating how much the state will pay to have those needs met.

Medicaid beneficiaries then are given the choice of letting a home health agency provide the needed services or making those decisions for themselves.

Typically, a home health agency won’t agree to provide the services if the agreed-upon rate doesn’t cover its overtime costs. But there’s nothing to stop an individual from hiring a caregiver — an adult son or daughter, for example — who’s willing to provide the care for what the state is willing to pay.

Bruffett said KDADS is now being told that after Jan. 1, so-called self-directed caregivers will have to be paid minimum wage as well as overtime.

If the agreed-upon rate falls short of the required wages, she said, the state will have to cut services or pay more for them.

The rule change likely will double the cost of providing thousands of beneficiaries with sleep cycle support services, she said. That refers to the practice of paying someone to be present while a beneficiary sleeps so they’re available when the person in their care needs help toileting, taking medication, being repositioned to prevent bedsores or getting out of bed in the morning.

Currently, the state pays about $35 for six to eight hours of sleep cycle support. After the minimum-wage requirement takes effect, it’s likely to cost roughly $60 per person per night.

Bruffett warned that without sleep cycle support, thousands of vulnerable Kansas — mainly frail elders and people with disabilities — likely would need to move to a nursing home setting.

“Those would not be good choices,” she said.

Bruffett said KDADS has not yet calculated how much it expects the change to cost the state. Instead, she said, the department is planning to “push back pretty hard,” noting that she recently wrote a letter to U.S. Department of Labor Secretary Tom Perez, asking him to exempt Kansas’ self-directed programs or delay implementation of the new rule.

“I’m not here to cause alarm,” she said, “but we do want people to know that changes are going to be made. And we’d like them to join us in pushing back. We’d like for there to be some kind of Kansas-specific exemption.”

Bruffett said she was aware that Perez has denied similar requests from other states.

The committee did not hear from anyone representing the U.S. Department of Labor.

Mike Oxford, executive director at the Topeka Independent Living Resource Center and a longtime advocate for the disabled, said implementing the rule change will be costly and disruptive.

“What’s really sad is that this is going to hijack a lot of other issues that we have going on, like restoring cuts in services and addressing waiting list for services,” he said. “And now, we’re looking at having to spend all this money on overtime, which, when it’s all said and done, is going to lead to fewer services.”

Oxford encouraged Medicaid beneficiaries to contact their legislators about the changes.

Dave Ranney is senior writer/editor with KHI News Service, an editorially independent reporting program of the Kansas Health Institute.

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