GUEST BLOG: T.K. Small, CDPAANYS Goes to Washington

CDPAANYS goes to Washington

by T.K. Small

As the newly appointed Director of Policy & Outreach for Concepts of Independent Choices, the expression “hitting the ground running” comes to mind.  Being barely on the job for one month, Tony Caputo, the President of CDPAANYS asked me to represent Concepts in a meeting in Washington with the Office of Management and Budget (OMB), along with Bryan O’Malley, Executive Director of CDPAANYS about an important issue facing everyone in the Consumer Directed community.  Specifically, the purpose of the meeting with OMB was to explain how the proposed elimination of the “companionship exemption” under the Fair Labor Standards Act” would fundamentally undermine the entire Consumer Directed model.

Briefly stated, the elimination of the companionship exemption will require that all Personal Assistants (PAs) must be paid an overtime rate of time and a half for every hour worked over 40 hours per week.  On its surface, this sounds like a good idea.  Everyone wants their PA to earn more money.  However, as with most cases, the devil is in the details, and this proposal does not come with any direct funding guarantees.  While the regulatory change does not specifically state that Personal Assistants will have their hours capped at 40 hours per week, this is the only logical prediction of what will be the results.

From different perspectives, Bryan and I explained that there are essentially three areas where people will be harmed; consumers, PAs and the Fiscal Intermediaries.  As a person who uses the consumer directed program, obviously I spoke about how the DOL regulations would effect me personally.  My care is very complicated, as I have a trach, ventilator and I am quite fragile.  The people that assist me have been with me for years and they do an excellent job of keeping me healthy and productive.  If their hours are capped at 40 hours, I will need to hire and train one or two more people.

Also, in my professional capacity as an attorney, many of my clients have had to fight to get into and remain in the community.  In NYC, there are still some of the original founders of Concepts of Independence, who have been using the program for 30 years.  A number of these “old-timers” used to live in nursing homes and during the meeting with OMB, I related how these changes were terrifying them.  They have said to me that under no circumstances will they go back.

Another big part of our meeting with OMB was to discuss how these changes will negatively impact Personal Assistants.  It doesn’t take a rocket scientist to figure out that having less money at the end of two weeks is bad for workers.  During this part of our conversation, I countered the assertion of some of the organizations promoting these changes that people with disabilities “Just don’t care about their PAs”.  Frankly, this is insulting and couldn’t be further from the truth.  In many instances, PAs are practically family, if not actually related.  In the same way that they are loyal to us, PWDs are loyal to our workers.

Concerning the third area of concern as to how these changes will affect the Fiscal Intermediaries, Bryan did an excellent job of presenting those arguments.  Some of the arguments were theoretical, as in the difference between whether DOL should take a “economic” or “common law” analysis of this type of work.  Other positions that Bryan explained were very practical in nature and highlighted that these changes haven’t been thought through completely.  It was really great when Bryan told OMB about our recent visits to Albany during which, the legislators all but said that “there is no more money”.

We also explained that ADAPT and the National Council on Independent Living have proposed a compromise to the DOL regulatory changes of there being a “carve out” of the Consumer Directed Program, and letting DOL go forward with this policy for the rest of the homecare industry.

If I do say so myself, I thought that Bryan and I did a very credible job of representing consumers, Personal Assistants and CDPAANYS.  Other than being briefly intimidated by the idea of having a meeting in the White House conference center, I’m glad I could contribute and I appreciate the opportunity.