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Michael Petruzzelli

, National Council for Behavioral Health

DoJ and HHS Issue Guidance Clarifying New Home Care Rule

January 8, 2015 | Workforce | Comments
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Last month, the Departments of Justice (DoJ) and Health and Human Services (HHS) issued a “Dear Colleague” letter providing guidance on the Department of Labor’s new home care rule, which extended minimum wage and overtime protections of the Fair Labor Standards Act to most home care workers. The letter describes the obligations of public entities under the Americans with Disabilities Act (ADA) and the Supreme Court’s Olmstead decision as they begin to implement the rule.

The ADA and the Olmstead decision protect the rights of people with disabilities to live free from unnecessary segregation in institutions. The letter highlights the important role of home care workers in the lives of those with disabilities and asks states to consider whether reasonable modifications are necessary so that individuals who receive home care services will not be at risk of institutionalization or segregation. Additionally, the letter warns that a public entity could violate the Olmstead decision if it fails to provide community services or reduces services, “in a way likely to cause a decline in health, safety, or welfare leader to an individual’s eventual placement in an institution.”

“This new Olmstead guidance gives consumers and advocates an important tool to prevent harm to people with disabilities and seniors as states are developing policies to implement the home care rule,” said Alison Barkoff, Director of Advocacy for the Bazelon Center for Mental Health Law.  “They should advocate for state policies that fund worker overtime and have the least impact on consumers and their workers. If their state is considering any policies that limit, cap, or restrict worker hours, advocates should ensure that the state is putting in place a process for people who could be placed at serious risk of institutionalization to be exempted from these policies.”

Read the full letter here.