NCD Letter RE: Implementation Period for the Final Rule, “Application of the Fair Labor Standards Act to Domestic Service”

May 12, 2014

The Honorable Thomas E. Perez Secretary
U.S. Department of Labor
200 Constitution Ave, NW
Washington, DC 20210

RE: Implementation Period for the Final Rule, “Application of the Fair Labor Standards Act to Domestic Service”

Dear Secretary Perez:

I am writing on behalf of the National Council on Disability (NCD) to request that the Department of Labor (DOL) extend the implementation period for the final rule, “Application of the Fair Labor Standards Act to Domestic Service,” issued October 1, 2013.  Such a delay will allow DOL and the Department of Health and Human Services (HHS) more time to work with States as well as the disability and aging communities to understand the policy and operational issues, develop workable solutions on key components, and determine an appropriate course of action.

As you know, NCD, an independent federal agency, has engaged on this important issue for the past two years and has consistently advised the Administration to take a balanced approach that embraces fair and equal pay for all while recognizing the challenges these changes pose to people with disabilities that require long-term services and supports to live in the community.  NCD first met with DOL in August 2012, upon hearing concerns from the disability and aging communities.  Subsequently, in October 2012, NCD urged DOL to engage in further dialogue with stakeholders, preferably through negotiated rulemaking, before proceeding further with the rulemaking process.[i]  On January 30, 2013, NCD convened a roundtable discussion, which more than 35 representatives from diverse stakeholder organizations participated.  In March 2013, NCD recommended that the Office of Management and Budget (OMB) require DOL to engage in further research and negotiation in order to fairly balance the complex needs of both the service providers and the disability and aging communities.[ii]  NCD continues to engage on this issue.

Our nation has a longstanding commitment to ensuring that Americans have the opportunity to live in the community with the appropriate supports, while addressing the growing costs associated with long-term services and supports.  NCD acknowledged the many complex issues in its report, “The State of 21st Century Long-Term Services and Supports: Financing and Systems Reform for Americans with Disabilities”:

NCD believes that America needs a coherent and comprehensive framework for its LTSS policies, programs, and funding based on five interrelated assumptions. First, that people who are elderly and people with disabilities both desire and deserve choices when seeking assistance with daily living that maintains their self-determination and maximum dignity and independence. Second, the current financing mechanisms (public and private) will become unsustainable in the near future without significant reform. The system must be affordable to all Americans regardless of income levels and must consider opportunities to leverage public and private support in new ways without impoverishing beneficiaries. Third, there is an opportunity with the changing demographic picture of the United States to explore the possibilities of a universal approach to the design and financing of supports that is responsive to individuals under the age of 65, as well as Americans over 65 who may or may not have disabilities, without sacrificing individual choice and flexibility. Fourth, formal and informal caregiving must be sustained, including examination of family needs and workforce recruitment and retention challenges. Fifth, the approach to quality must examine consumer direction and control of resources in addition to traditional external quality assurance mechanisms.[iii]

Furthermore, as the Administration continues its work on implementation of changes to the Fair Labor Standards Act, NCD urges DOL and HHS to consider the recommendations and findings in its 2013 publication, “The Case for Medicaid Self-Direction: A White Paper on Research, Practice, and Policy Opportunities.”[iv]

More work is necessary for the implementation of a solution that respects and fairly compensates personal care providers, while ensuring that supports and services for people with disabilities continue with efficiency, ease of access, and compassionate respect for personal dignity.  NCD remains available to facilitate opportunities for further dialogue on the impact of these rules and how they can be implemented 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 new rules.  

Thank you for your ongoing attention to this issue.  Please do not hesitate to contact NCD through Joan Durocher, General Counsel & Director of Policy, at (202) 272-2117 or jdurocher@ncd.gov if we may be of any further assistance. 

Respectfully,

Jeff Rosen
Chairperson

cc:

David Weil, Administrator, Wage and Hour Division, Department of Labor

Cynthia Mann, Deputy Administrator and Director, Center for Medicaid and CHIP

Services, Centers for Medicare & Medicaid Services

Sharon Lewis, Principal Deputy Administrator and Senior Advisor to the Secretary for Disability Policy, Office of the Administrator, Administration for Community Living, Department of Health and Human Services



[i] National Council on Disability, “Letter to DOL on the Companionship Exemption, October 1, 2012, available at http://www.ncd.gov/publications/2012/DOL10012012/.

[ii] National Council on Disability, “Letter to OMB about the Companionship Exemption, March 19, 2013, available at http://www.ncd.gov/publications/2013/03192013/.

[iii] National Council on Disability, “The State of 21st Century Long-Term Services and Supports: Financing and Systems Reform for Americans with Disabilities,” December 2005, available at http://www.ncd.gov/publications/2005/12152005.

[iv] National Council on Disability, “The Case for Medicaid Self-Direction: A White Paper on Research, Practice, and Policy Opportunities”, May 22, 2013, available at http://www.ncd.gov/publications/2013/05222013A/.

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