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Kansas Gets Reprieve On New Rules For Medicaid Home Care Providers

The U.S. Department of Labor on Tuesday granted a six-month delay in enforcement of a new rule applying federal minimum wage and overtime provisions to home care workers employed by so-called “self-directed” Medicaid consumers.

The rule, which mandates minimum wage and overtime pay for home care staff who work more than 40 hours a week, will still go into effect Jan. 1, 2015, as originally announced. However, for the first six months of next year, the Labor Department will use its "prosecutorial discretion" and will not enforce the rule. That means the department will not conduct audits, investigations or respond to complaints.

The Kansas Department for Aging and Disability Services was among several entities seeking relief from the new rule. Gov. Sam Brownback had expressed concern that the rule boosting the pay of personal care attendants hired by elderly and disabled Kansans to help them stay in their own homes would add $33 million to $40 million to the overall Medicaid budget in Kansas, including $15 million from state funds not in the current budget.

KDADS Secretary Kari Bruffett had predicted that would force the state to put a hard cap on the hours that in-home caregivers could work.

“The state of Kansas is very likely to respond to something like this by saying we’re not going to let anybody work over 40 hours," she said. "Because the way our model is set up, we don’t have the ability to control, specifically, what your hours are, because the consumers are controlling that.”

On Tuesday, Bruffett said state officials were reviewing the newly announced policy.

“We are grateful that it now appears the Department of Labor understands the impact of its new interpretation of the FLSA (Fair Labor Standards Act) rules,” she said. “We would also add that the voice of self-directed consumers in Kansas, whose care and services would be the most affected by the new interpretation, undoubtedly played an important role in the DOL’s announcement today.”

Not everyone was pleased with the Labor Department’s decision to delay enforcement of the rule. PHI, a New York-based nonprofit group that advocates for quality long-term care, issued a statement saying home care workers deserve better.

“The decision to delay means that 2 million home care workers — largely low-income women, and disproportionately women of color — will have to wait as long as another 12 months to receive even the most basic labor protections, guarantees that most other American workers take for granted,” PHI President Jodi Sturgeon said. 

Sturgeon called on states like Kansas that have not yet taken steps to comply with the rule to make the necessary budget commitments and program adjustments to ensure compliance by June 2015. After that time, the Labor Department still may opt not to take enforcement actions, but that will depend on the circumstances.

Bruffett said it's too soon to say whether the Brownback Administration would request funding during the 2015 legislative session to finance the state’s share of the minimum wage and overtime costs associated with the federal rule.

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