1. Virginia Medicaid Consumer-Directed Supports Impact of DOL Rule May 12, 2016 Virginia Association of Centers for Independent Living www.vacil.org vawaivers-subscribe@yahoogroups.com Maureen Hollowell, mhollowell@endependence.org

2. Agenda 12:00-12:10pm Background, Maureen Hollowell, VACIL 12:10-12:25pm June 30 Change, Terry Smith, Department of Medical Assistance Services 12:25-12:40pm Exceptions Process, Alison Barkoff, Bazelon Center 12:40-12:45pm Next Steps, Maureen Hollowell, VACIL

3. Timeline New Federal Regulation Published: October 2013; Effective Date: January 2015 Governor requests a budget amendment to pay overtime: December 2014 US District Court for the District of Columbia: February 2015 General Assembly did not act on amendment: February 2015 US Court of Appeals held the DOL rule: August 2015 DMAS request with Dept of Planning and Budget: November 2015 Governor introduced budget with 16 hours of CD overtime: December 2015 DMAS began paying overtime for all CD hours worked beyond 40: January 2016 House and Senate adopt a budget amendment to limit CD assistants to 40 hours per week and end all CD overtime: March 2016 Governor requests a budget amendment to allow 16 hours of CD overtime: April 2016 General Assembly rejects Governor’s budget amendment: April 20, 2016 CD overtime expected to end: June 30, 2016

4. United States Department of Labor Fair Labor Standards Act Federal law minimum wage, overtime pay, recordkeeping and child labor 1974, Congress extended FLSA coverage to workers who perform “domestic service” Including companions, caretakers, home health aides, personal care aides But exempted certain domestic service workers who provide “companionship services” from the FLSA’s minimum wage and overtime provisions

5. United States Department of Labor Regulations Amended – Oct 2013 US Department of Labor revised the definition of “companionship services” Effective January 1, 2015, tasks that are no longer considered “companionship services” Assisting with activities of daily living (ADLs) Dressing, grooming, feeding, bathing, toileting and transferring Assisting with instrumental activities of daily living (IADLs) Meal preparation, driving, light housework, arranging medical care and assisting with medications

6. United States Department of Labor Live-In Aide Exemption Exempt from overtime pay “Must reside on the employer's premises either "permanently" or for "extended periods of time.” “Resides on the employer's premises for an extended period of time when he or she lives, works and sleeps on the employer's premises for five days a week (120 hours or more). If a domestic worker spends less than 120 hours per week working and sleeping on the employer's premises, but spends five consecutive days or nights residing on the premises, this also constitutes an extended period of time.” Fact Sheet 79B: Live-In Domestic Service Employment Under FLSA – www.dol.gov/whd/regs/compliance/whdfs79b.htm

7. Joint Employment An assistant may be considered to be an employee of more than one employer If DMAS were a joint employer – The live-in exemption would not be allowed CD assistants would have to be paid overtime if they worked more than 40 hours a week for any one or combination of CD hours for more than one person with a disability Virginia Medicaid Consumer-Direction DMAS is not a joint employer and is proceeding in that manner (at this time)

8. Determining Joint Employment “Economics realities” test Ability to hire and fire Control over wages or benefits Hours and scheduling Supervises, directs or controls the work Performs payroll and other administration functions No single factor determines joint employment Strong, moderate, weak indicators of employer status

9. Joint Employment Resources Administrator’s Interpretation No. 2014-2 (AI) – https://www.dol.gov/WHD/opinion/adminIntrprtn/FLSA/2014/FLSAAI2014_2.pdf https://www.dol.gov/WHD/opinion/adminIntrprtn/FLSA/2014/FLSAAI2014_2.pdf Fact Sheet 79E: Joint Employment in Domestic Service Employment Under FLSA - www.dol.gov/whd/regs/compliance/whdfs79e.htm www.dol.gov/whd/regs/compliance/whdfs79e.htm We Count on Homecare: Joint Employment https://www.dol.gov/whd/homecare/joint_employment.htm

10. Next….. Medicaid overtime ends June 30 Survey Monkey, https://www.surveymonkey.com/r/CD40 https://www.surveymonkey.com/r/CD40 Request that DMAS establish an exceptions process VACIL letter, Organizations can sign on If no exceptions process (by when?) Complaint to the US Department of Justice ADA, Title II, Olmstead Centers for Independent Living Contact for advocacy and information www.vacil.org Injunction or other legal action General Assembly in 2017 Meet while out of session to explain the impact