CDCAN: STATE HALTS IMPLEMENTATION OF OVERTIME FOR IHSS WORKERS IN CALIFORNIA DUE TO FEDERAL DISTRICT COURT RULINGS

SACRAMENTO, CA [CDCAN LAST UPDATED 01/15/2015 – 04:50 PM] –  The Department of Social Services, the state agency that oversees statewide the In-Home Supportive Services (IHSS) program that serves over 450,000 children and adults with disabilities, mental health needs, the blind and seniors, announced today that it is halting implementation of overtime, travel and wait time pay for IHSS workers that was originally set to go into effect January 1, 2015.  The announcement follows a federal district court ruling yesterday and on December 22nd that struck down two key major provisions of the US Department of Labor home care regulations that would have required overtime pay for previously exempted home care workers.  A notice is being sent to all IHSS recipients and workers with that announcement.
    “In view of the fact the Federal requirements relating to overtime payments have been vacated by the court, California will retain the program structure that existed before the Department of Labor issued the rule,” said California Department of Social Services’ Director Will Lightbourne. “This means recipients of services will continue to receive all of the monthly hours they have been authorized, and will continue to receive their services from their provider of choice.”
    All In-Home Supportive Services providers will continue to be paid straight-time at the locally bargained hourly wage, in the same manner in which hours were reported and providers were paid in 2014.
    A similar announcement is expected soon from the Department of Developmental Services which oversees the 21 non-profit regional centers who in turn coordinate services and supports for over 250,000 children and adults with developmental disabilities including Supported Living Services, In-Home Respite Services and Personal Assistance Services. 
 
TEXT OF JANUARY 15th NOTICE TO ALL IHSS RECIPIENTS AND WORKERS
    The following is the complete text of a notice being sent to all IHSS recipients and workers regarding the State halting implementation of overtime:
 
To: IHSS Recipients and Providers
   
On December 31, 2014, the California Department of Social Services notified the public that implementation of the California In-Home Supportive Services Program’s new overtime, travel and wait time rules was being delayed due to a federal court order. This letter contains further guidance.
    In two orders issued December 22, 2014 and January 14, 2015, the U.S. District Court in Washington D.C. invalidated the U.S. Department of Labor’s changes to its rules regarding home care workers.
Because of the court’s actions, the federal requirements for overtime and other compensation changes will not go into effect.
    Accordingly, the California In-Home Supportive Services Program will not implement payments for overtime, travel, or wait time, and will not implement weekly hour limits.
    What this means for recipients:
 

  • You may continue to receive care from your current provider for your monthly approved hours as you did in 2014.

   What this means for the providers:
 

  • You will continue to be paid your regular hourly wage as you were in 2014.

    The IHSS program will notify you if there is any change to payroll policy or procedures in the future.
 
TEXT OF THE JANUARY 15th NEWS RELEASE FROM THE DEPARTMENT OF SOCIAL SERVICES
    The following is the news release today from the Department of Social Services regarding the State halting implementation of overtime for IHSS workers:
 
CALIFORNIA DEPARTMENT OF SOCIAL SERVICES
MEDIA RELEASE
 
Contact: Michael Weston
January 15, 2015
(916) 657-2268
Michael.weston@dss.ca.gov
 
State Halts Implementation of Overtime for In-Home Supportive Services
Judge’s Ruling Vacates Federal Regulations
 
Sacramento – Following a Federal Judge’s ruling invalidating regulations adopted in 2013 by the U.S. Department of Labor, California Department of Social Services Director Will Lightbourne announced today a halt to the implementation of changes related to overtime, travel, and wait time pay for providers in the In-Home Supportive Services program.
    “In view of the fact the Federal requirements relating to overtime payments have been vacated by the court, California will retain the program structure that existed before the Department of Labor issued the rule,” said California Department of Social Services’ Director Will Lightbourne. “This means recipients of services will continue to receive all of the monthly hours they have been authorized, and will continue to receive their services from their provider of choice.”
    All In-Home Supportive Services providers will continue to be paid straight-time at the locally bargained hourly wage, in the same manner in which hours were reported and providers were paid in 2014.
    In-Home Supportive Services is a federal/state health and social service program that provides personal care and domestic services for eligible individuals who are aged, blind, or disabled so they may remain safely in their homes. The In-Home Supportive Services Program is available in all 58 counties, has been in operation for nearly 40 years and is the largest program of its kind in the United States.
    The In-Home Supportive Services program has more than 400,000 care providers serving the full caseload of 490,000 recipients.
    You can also visit the California Department of Social Services website at http://www.cdss.ca.gov
 
 
FEDERAL DISTRICT COURT JUDGE’S ORDERS OF DECEMBER 22nd AND JANUARY 14th
   As previously reported by CDCAN, the US District Court Judge Richard Leon vacated or struck down the second major key provision of the final US Department of Labor home care regulations that was scheduled to go into effect January 1, 2015, dealing with changing definitions regarding “companionship services”.
    Earlier, on December 22, 2014, Judge Leon struck down the provisions dealing with “third party employment” of home care workers that would have removed exemptions to overtime for home care workers employed by hose workers. “Third party employers” include state agencies, private agencies and community organizations that employ those workers to provide services and supports to people with disabilities, mental health needs, the blind and seniors, but kept the remaining regulations (including those dealing with changes to the companionship definitions) intact. However on December 31st the same judge issued a temporary “stay” that delayed until at least January 15th, the implementation of the remaining regulations dealing with “companionship services”.
    The judge decided on January 8th in the “interests of justice” to consolidate his previous December 22nd ruling that struck down the third party employer provisions from the regulations, the issues regarding the “merits” of the case itself involving whether or not the US Department of Labor overstepped its legal authority to issue the regulations in the first place without changes in federal law; and the ruling for a preliminary injunction to delay the regulations from taking effect until the lawsuit is resolved. Consolidating the issues before the court would assist in making the process to file appeals faster and easier for either party, according to the judge. 
 
JUDGE’S DECEMBER 22, 2014 ORDER DEALING WITH THIRD PARTY EMPLOYMENT:
 
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
 
HOME CARE ASSOCIATION OF AMERICA, et al.
Plaintiffs
v.
DAVID WEIL, et al.
Defendants
 
Case No. 14-cv-967 (RJL)
 
ORDER
    For the reasons set for in the Memorandum Opinion entered on this date, it is this 22nd day of December, 2014 hereby
    ORDERED that Plaintiffs’ Motion for Expedited Partial Summary Judgment [Dkt. #9] is GRANTED; and it is further
    ORDERED that the Defendants’ Motion to Dismiss or in the Alternative Cross-Motion for Summary Judgment [Dkt. #13] is DENIED; it is further
    ORDERED that the Department of Labor’s Third Party Employer Regulation promulgated in 78 Fed. Reg. 60,557 and to be codified at 29 C.F.R. Section 552.109, is VACATED.
[Signed]
RICHARD J. LEON
United States District Judge
 
JUDGE’S JANUARY 14, 2015 ORDER DEALING WITH COMPANIONSHIP SERVICES:
 
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
 
HOME CARE ASSOCIATION OF AMERICA, et al.
Plaintiffs
v.
DAVID WEIL, et al.
Defendants
 
Case No. 14-cv-967 (RJL)
 
ORDER
    For the reasons set for in the Memorandum Opinion entered on this date, it is this 14th day of January, 2015 hereby
    ORDERED that Plaintiffs’ motion for summary judgment [Dkt. #23] is GRANTED; and it is further
    ORDERED that the Department of Labor’s defining “companionship services,” promulgated in 78 Fed. Reg. 60,557 and to be codified at 29 C.F.R. Section 552.6, is VACATED.
[Signed]
RICHARD J. LEON
United States District Judge
 
STATE RELATED LAWS DEALING WITH IMPLEMENTING OVERTIME TIED TO THE FEDERAL REGULATIONS
    For background information, CDCAN is providing the following are the two budget related bills (tied to the 2014-2015 State Budget enacted last June) dealing with implementation of the US Department of Labor home care regulations.
 
IHSS AND WAIVER PERSONAL CARE SERVICES
    The budget related bill dealing with implementing overtime, wait and travel time pay for IHSS and Medicaid Waiver Personal Care Service workers included specific provisions and restrictions – including a cap on the number of hours that could be worked in a work week, and also a provision that allowed implementation in the event that the federal regulations become “only partially effective”, tose persons though operative “only for those persons for whom federal financial participation is available as of that [effective] date.”
    SB 855 (Chapter 29, Statutes of 2014) for IHSS and Waiver Personal Care Services – PDF Document Copy (148 pages) – references regarding when the provisions dealing with overtime would become operative is on page 136 of the bill as signed into law last June):
    http://www.leginfo.ca.gov/pub/13-14/bill/sen/sb_0851-0900/sb_855_bill_20140620_chaptered.pdf
    [Page 136 of the bill as signed into law]:
    SEC. 76. Section 12300.4 is added to the Welfare and Institutions Code, to read:
    (l) (1) This section shall become operative only when the regulatory amendments made by RIN 1235-AA05 to Part 552 of Title 29 of the Code of Federal Regulations are deemed effective, either on the date specified in RIN 1235-AA05 or at a later date specified by the Federal Department of Labor, whichever is later.
    (2) If the regulatory amendments described in paragraph (1) become only partially effective by the date specified in paragraph (1), this section shall become operative only for those persons for whom federal financial participation is available as of that date.
 
REGIONAL CENTER FUNDED SUPPORTED LIVING, IN-HOME RESPITE AND PERSONAL ASSISTANCE SERVICES
    Unlike for IHSS and Waiver Personal Care Services in SB 855, the references regarding the US Department of Labor regulations for regional center funded home care type services were less specific and also did not include a clause that dealt with the situation if the regulations were only partially effective and is on pages 52 and 53 of the bill as signed into law:
    SB 856 (Chapter 30, Statutes of 2014) for regional center funded Supported Living Services, In-Home Respite Services and Personal Assistance Services – PDF Document:
    http://www.leginfo.ca.gov/pub/13-14/bill/sen/sb_0851-0900/sb_856_bill_20140620_chaptered.pdf
    [Page 52 of SB 856]
    SEC. 19. Section 4691.6 of the Welfare and Institutions Code is amended to read:
    (h) Notwithstanding any other law or regulation, commencing January 1, 2015, the in-home respite service agency rate schedule authorized by the department and in operation December 31, 2014, shall be increased by 5.82 percent, subject to funds specifically appropriated for this increase for costs due to changes in federal regulations implementing the federal Fair Labor Standards Act of 1938 (29 U.S.C. Sec. 201 et seq.). The increase shall be applied as a percentage, and the percentage shall be the same for all applicable providers.
    [Page 53 of SB 856]
    SEC. 20. Section 4691.9 of the Welfare and Institutions Code is amended to read:
    (c) Notwithstanding any other law or regulation, commencing January 1, 2015, rates for personal assistance and supported living services in effect on December 31, 2014, shall be increased by 5.82 percent, subject to funds specifically appropriated for this increase for costs due to changes in federal regulations implementing the federal Fair Labor Standards Act of 1938 (29 U.S.C. Sec. 201 et seq.). The increase shall be applied as a percentage, and the percentage shall be the same for all applicable providers. As used in this subdivision, both of the following definitions shall apply:
    (1) “Personal assistance” is limited only to those services provided by vendors classified by the regional center as personal assistance providers, pursuant to the miscellaneous services provisions contained in Title 17 of the California Code of Regulations.
    (2) “Supported living services” are limited only to those services defined as supported living services in Title 17 of the California Code of Regulations.
   
FINAL HOME CARE REGULATIONS
    For background information CDCAN is providing the following are links from the US Department of Labor website of the final regulations printed in the Federal Register, Volume 78, No. 190 on October 1, 2013 dealing with changes to home care and home care workers – with two of the major provisions or sections dealing with companionship services and third party employment of home care workers vacated or struck down by US District Court Judge Richard Leon:
 
Application of Fair Labor Standards Act (FLSA) to Domestic Service Final Rule – Plain Text: http://webapps.dol.gov/FederalRegister/HtmlDisplay.aspx?DocId=27104&AgencyId=14&DocumentType=2
Application of Fair Labor Standards Act (FLSA) to Domestic Service Final Rule – PDF Document Copy (105 pages):
http://webapps.dol.gov/FederalRegister/PdfDisplay.aspx?DocId=27104
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