Letter to DOL on the Companionship Exemption

October 1, 2012

Nancy Leppink
Deputy Administrator, Wage and Hour Division
U.S. Department of Labor
200 Constitution Avenue, NW, S-3510
Washington, DC 20210

RE: Proposed Changes to the Companionship Exemption, RIN 1235-AA05

Dear Deputy Administrator Leppink:

Thank you for meeting with the National Council on Disability (NCD), Deputy Secretary Seth Harris, Assistant Secretary Kathy Martinez, and our staff and Council members, Vice Chairperson Janni Lehrer-Stein and Fernando Torres-Gil, on August 14, 2012, to discuss the Department of Labor’s (DOL) proposed changes to the Companionship Exemption to overtime compensation under the Fair Labor Standards Act.  We understand that this issue is extremely complex, and are respectful of the extensive time that your office, the Office of Disability Employment Policy and others have spent crafting the proposed rule, and the many opinions and intention expressed to ensure that consistent and fair standards of pay are ensured for the growing industry of companion and service provider caregivers.  However, there is no question that the proposed rule will create changes that may have devastating impact on the community of Americans with disabilities that rely on such services. Upon review of the guidance documents provided by your office and extensive consultation with members of the disability community, NCD encourages the Department of Labor, working in concert with the Office of Disability Employment Policy, to engage in further research and negotiation in order to fairly balance the complex needs involved, of both the service providers and the disability community.

NCD recommends that the Department of Labor engage in further discussion with stakeholders within the disability community before proceeding with the final steps of the proposed rulemaking process and consider use of a negotiated rulemaking process to create an opportunity for direct dialogue with the disability community throughout the drafting of the proposed rules, or proposing alternate means for engagement by the disability and the care providing communities to reach a balanced and equitable rule that respects and reflects the needs and entitlements of both communities.  While this may sound like a step back, the serious concerns that have been voiced to NCD indicate that further dialogue between DOL, care providers and their associations and federations, and the disability community over the impact of these proposed rules and how they could be constructed to minimize the negative impact on people with disabilities and consumer directed personal assistance services will eliminate confusion in application, and benefit everyone.

There is clear precedent for negotiated rulemaking, or further consideration and input from stakeholders and experts at this time. Several federal agencies, such as the Department of Health and Human Services and the Department of Education, utilize negotiated rulemaking process.  The NCD is available to assist in identification of experts and stakeholders who could help formulate guidance and elements of the proposed rule in concerted negotiation with care servers and other providers, and encourages the Department of Labor to work with the disability community to eliminate confusion about the potential impact of the rule, and possibly expand this analysis prior to taking final action on the proposed rule.  

The disability community has specific knowledge and information that it hopes will become a formative part of the final rule.  Consolidated sources of data on state consumer-directed programs have been published and are available, and can be accessed through contact with the National Council on Independent Living, ADAPT, and the Center for Personal Assistance Services.  The government directed research and expert comment on this issue is also available from the Department of Health and Human Services, which has published research on these services, and NCD.  We would be delighted to assist in transmittal and consideration of the materials.

NCD is eager to assist with the formulation of a solution on the companion care exemption that respects and fairly compensates personal care providers, while ensuring that supports and services for Americans with disabilities continue with efficiency, ease of access, and compassionate respect for personal dignity.  NCD looks forward to facilitating further opportunities for the disability community to enter into a dialogue with DOL over the impact of these proposed rules and how they could be constructed to minimize the negative impact on people with disabilities and consumer directed personal assistance services.  NCD encourages further consideration of research, consultation with experts, and facilitated discussion among all interested parties in order to ensure a clear, balanced and responsive solution to the issues justly addressed by the rule-making inquiry.   

Thank you for your ongoing attention to this issue.  NCD stands ready to provide assistance and collaboration that will benefit people with disabilities and their caregivers.  We are available to discuss these matters at your earliest convenience.  Please contact me through NCD’s General Counsel & Director of Policy Joan Durocher, at (202) 272-2117 or jdurocher@ncd.gov.  

Respectfully,


Aaron Bishop
Executive Director

cc:
Secretary Hilda Solis
Deputy Secretary Seth Harris
Assistant Secretary Kathy Martinez

National Council on Disability • 1331 F Street, NW, Suite 850 • Washington, DC 20004