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Independent Living News & Policy from the National Council on Independent Living

NCIL Denounces DOL Non-Enforcement Policy for FLSA Changes

The US Department of Labor (DOL) has responded to the disability community’s request that it delay implementation of new rules on the Fair Labor Standards Act (FLSA) companionship exemption. Rather than delay implementation, DOL has chosen to adopt a non-enforcement policy: DOL will not enforce the companionship changes until June 30, 2015. Additionally, for a period of six months following June 30, DOL will have “prosecutorial discretion” to delay enforcement against states and other providers on a case-by-case basis. During this period, DOL will be providing “extensive” outreach and technical assistance on the companionship changes.

This decision will have serious consequences for people with disabilities and attendants. Without funding in place to pay for the FLSA changes, states and provider agencies will simply cap the number of hours attendants can work to avoid any overtime costs and liability. This will undercut the ability of people with disabilities and seniors to live in the community, undermine the ability of seniors and people with disabilities to decide who comes into our homes, and hurt attendants by reducing their income.

To avoid these unintended consequences, disability rights advocates asked DOL to delay the implementation of these rule changes by 18 months to give time to secure state funding to pay for the new requirements.

Rather than implement a solution that prevents the detrimental impact of these changes, DOL has chosen an incomplete and inadequate solution.

DOL has told disability rights advocates the risk of litigation is minimal. However, providers will not risk legal action or being put out of business. This means people with significant disabilities will lose long-time attendants and may be forced into nursing facilities or other institutions.

Disability rights advocates are angry because DOL rejected a straight-forward solution that would prevent unwanted institutionalization and hardship on attendants – the very people these changes were intended to help.

Although the Department of Labor has said that it won’t enforce the law, nothing prevents individuals from suing to enforce it.

The following advocacy documents were jointly developed by a number of national advocacy organizations (including NCIL) who are concerned about the affect these rules will have on consumer directed programs.

Please see:

NCIL thanks ADAPT for their significant contributions to this article and extensive reporting and direct action on this issue.

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