Last week, a three-judge panel of the U.S. Court of Appeals for D.C. upheld the Department of Labor’s (DOL) Home Care Rule (PDF) and reversed the lower court’s January decision to vacate the Rule. As a reminder, in September of 2013, the DOL issued a regulation known as the Home Care Rule that expanded the Fair Labor Standards Act’s (FLSA) minimum wage and overtime requirements to most home- and community-based service workers, who were previously exempt from these requirements. In January of this year – when the Rule was supposed to go into effect – Judge Leon of the U.S. District Court for D.C. vacated the Rule (PDF), stating that the DOL was “trying to do through regulation what must be done through legislation.”
NCIL is extremely supportive of higher wages and benefits for personal care attendants. Unfortunately, that is not what this Rule will accomplish. The reality is that this Rule will result in harmful cuts for both consumers and workers. In several states that have started planning for the Rule’s implementation, we’ve already seen consumers get their service hours cut and workers receive notices of caps on hours and earnings. If this rule moves forward, the result will be widespread service disruptions that will lead to negative health consequences, decreased independence, and increased risk of institutionalization for millions of consumers with disabilities around the country.
Without further action, the Rule will go into effect on October 13, 2015. During this time however, the plaintiffs have the opportunity to file petitions requesting the decision be reheard by the entire D.C. Circuit, or asking the U.S. Supreme Court to review the decision by filing a Petition for Writ of Certiorari. Depending on how the case moves forward, an additional “stay” can also be sought to maintain the status quo until a final decision is made.
It is still important for advocates and consumers to be knowledgeable about this Rule and any actions your state is taking to prepare for its implementation. It is vital that the disability community be involved in these state plans to ensure that they do not cut services, dismantle programs that allow consumers to control our services, or place caps on worker hours and earnings. NCIL will continue to be engaged with this case and will keep you updated on its status as it moves forward.