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Kansas Officials Reviewing Decision Upholding Regulations For Home Care Workers

Dave Ranney
Heartland Health Monitor

Kansas officials are reviewing a recent federal appeals court ruling that requires the state’s Medicaid program to pay in-home care workers minimum wage and overtime.

Officials at the Kansas Department of Aging and Disability Services issued a statement shortly after the ruling was handed down Friday saying they were attempting to determine its “potential impact” on the state’s Medicaid program, known as KanCare.

In part, the statement read: “KDADS is committed to minimizing any negative impact this may have on consumers, direct service workers and providers while ensuring the health, safety and welfare of those who receive services from HCBS programs.”

HCBS refers to Medicaid-funded home and community based services.

Previously, KDADS Secretary Kari Bruffett had said that having to pay home care workers more — particularly those who provide sleep cycle support — would increase costs and reduce access to services that help frail seniors and people with disabilities live in community-based settings rather than in nursing homes.

Sleep cycle support workers provide overnight care to individuals who need help toileting, taking medications and being repositioned to prevent bedsores.

Having to pay them minimum wage — $7.25 an hour — would cost the state an additional $12 million, Bruffett told Kansas lawmakers last spring.

Kansas and eight other states filed friend-of-the-court briefs opposing a U.S. Department of Labor regulation requiring third-party employers to pay in-home care works minimum wage and overtime.

The ruling by the U.S. Court of Appeals for the District of Columbia reversed an earlier trial court ruling that had blocked enactment of the regulation.

Deane Beebe, a spokesperson for the Paraprofessional Healthcare Institute, a national organization that represents home health aides and personal care attendants, hailed the ruling.

“The (appeals) court has ruled and recognized that home care workers are doing hard work and deserve the same labor protection as most workers in this nation, and that states need to prepare to implement the new rule and get ready to pay workers what they rightfully deserve,” Beebe said.

Much of the ruling, Beebe said, focused on whether the Department of Labor had the authority to alter regulations that have long exempted so-called companions — employees who live with the people they’re caring for — from minimum wage laws.

The decision upheld the Department of Labor’s authority to repeal the exemption, which states had long used to justify paying sleep cycle support workers less than minimum wage.

In Kansas, sleep cycle support workers are paid roughly $25 for a six-hour night or $31 for an eight-hour night.

“That’s less than minimum wage,” said Ami Hyten, assistant director at the Topeka Independent Living Resource Center, which helps people with disabilities find, hire and train caregivers.

“That will be the single, most profound effect that this decision is going to have on us because we don’t have the money in our budget to make that happen,” Hyten said. “It’s not in KDADS’ budget either.”

Hyten said about 25 percent of the 400 people who receive in-home services through the Topeka center rely on sleep cycle support. Without it, she said, many likely would have to move to nursing homes.

It’s not yet clear when the new regulation will take effect.

The plaintiffs in the case, Home Care Association of America v. Weil, are trade associations representing the nation’s home care providers. They have until early October to ask the appeals court to reconsider. They also have the option of asking the U.S. Supreme Court to hear the case.

William Dombi, vice president for law with the National Association for Home Care and Hospice, last week said he and other industry officials had yet to decide whether to appeal the ruling.

Dave Ranney is a reporter for KHI News Service in Topeka, a partner in the Heartland Health Monitor team.

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