Fair Labor Standards Act – Companionship Rules Update
As the days go by, uncertainty continues around the proposed regulations amending the Fair Labor Standards Act companionship regulations. As you have seen, CDPAANYS has issued two different Advocacy Alerts in the past week, as the work of CDPAANYS Advocacy Chair Bruce Darling – who has spent the better part of the last year in Washington, D.C. fighting these regulations and has played a large role in getting CDPAANYS to the table in several major conversations – indicates that the pending rules are “imminent”.
While CDPAANYS will continue to be fighting hard to make sure that if the rules go through, CDPA is exempt, we also want to make sure people are prepared in the event they take effect as proposed, or close to it. We have already alerted Hermes Fernandez, our general counsel, that the regulations may be coming out and he is prepared to quickly turn around an opinion on implementation for CDPAANYS members. However, note that regulations usually take effect immediately and do not contain a grace period. There are rumors circulating that these regulations will have a grace period; however, we cannot confirm that and, it is seeming more likely that if anything, the federal government will say off the record that they will not be enforcing the regulations for a period of time, up to one year, for consumer directed services. Of course, this is of little help in actuality because all FI contracts state that you will follow all federal and state laws and regulations. Therefore, even if the Federal government does not enforce the rules, counties and managed care companies could cite you and recoup money if you are not following them.
Therefore, if you have not already, CDPAANYS strongly urges you to begin looking at what policies and procedures you will change if the overtime rules go into effect. I know that some of you have already instituted similar rules for your FI. Please note that there may be critical differences in how you have voluntarily imposed these rules and how the Federal government will make you. For instance, the proposed regulations would require that if a personal assistant is traveling from one consumer to another, they must be paid. They also count all hours the worker works cumulatively, instead of on a per consumer basis as would make sense since the consumers are the ones actually employing the workers.
These are only two instances of where the rules may cause revisions to policies and procedures. The full regulations will undoubtedly cause a tremendous amount of legal work and policy revision everywhere. CDPAANYS will continue to be here for our members as we look at these. We will also work with Hermes and other organizations in New York and throughout the country to examine options if the regulations do go into effect as originally proposed.
In the meantime, I cannot emphasize enough that now is the time to pull out and and all ideas that you may have regarding advocacy with the White House. If one of you happen to be close personal friends with the President, please make a call. Otherwise, please do reach out to the White House and ask them to exempt consumer directed services from the regulations and work with those of us who run and use the program throughout the state to the table to create regulations that work and can be implemented without destroying the system and interrupting care for thousands of people. Call Senator Schumer and Senator Gillibrand if you have not already and ask them to convey to the White House the problems this will cause for New York.
CDPAANYS is continuing our advocacy as well and we will let you know with future advocacy alerts what can be done.