The U.S. Department of Justice’s Civil Rights Division (DOJ) and the U.S. Department of Health and Human Services’ Office for Civil Rights (OCR) released a joint letter this week on the Department of Labor’s Fair Labor Standards Act (FLSA) rule implementation. The letter addresses states’ Olmstead obligations in relation to the new FLSA Home Care Rule regarding minimum wage and overtime protections for home care workers.
The DOJ / OCR letter states that while ensuring protections for home care workers is a priority, it should not be done at the expense of people with disabilities. The DOJ and OCR recognize that changing or limiting services can increase the risk of institutionalization or segregation for individuals with disabilities, and their letter stresses that the implementation of the Home Care Rule must comply with Title II of the ADA and the Olmstead decision.
As you know, some states are planning to comply with the Home Care Rule by setting limits or capping direct care workers’ hours or travel time. This letter emphasizes that across-the-board caps risk violating the ADA. The DOJ and OCR urge states to consider making modifications, including exceptions to these limits and caps when appropriate, to avoid placing individuals who receive services at an increased risk of institutionalization or segregation. It also encourages states to implement processes for individuals with disabilities to obtain these exceptions “reliably and expeditiously”, and to collect and monitor data to ensure that service changes and disruptions do not place individuals with disabilities at a serious risk.
This letter shows a commitment by the DOJ and OCR to minimizing the impact of the Home Care Rule on consumers who use home care and personal attendant services. It is now up to all of us to continue advocating on a state level to ensure that states follow the guidance provided in this letter when planning for FLSA compliance. The Home Care Rule must not be enacted at our expense. This commitment from the DOJ and OCR is a step in the right direction, and it provides a tool for advocates to use at the state level.