July 6, 2016
The Honorable Terry McAuliffe
Commonwealth of Virginia
P.O. Box 1475
Richmond, VA 23218
Dear Governor McAuliffe:
We appreciate the efforts you have made regarding implementation of the new federal Department of Labor rules requiring overtime pay to attendants who work for people with disabilities for more than 40 hours a week. Your budget requests for some limited overtime for consumer-directed attendants made clear that you understand the critical importance of these services to helping people with disabilities live in the community and that some overtime is necessary to avoid placing people at risk of being forced into institutions. Although the Virginia General Assembly unfortunately has stated that DMAS is not generally authorized to pay overtime for consumer-directed attendants, we believe federal law requires DMAS to take steps to establish an exceptions process so that those individuals who cannot find or cannot use multiple caregivers are able to obtain the necessary overtime hours and are not forced into an institution or otherwise endangered.
The Americans with Disabilities Act (ADA) requires the Commonwealth to provide services in the most integrated setting appropriate to the needs of the individual. In Virginia, we have good home and community-based options that allow an individual to receive supports in their home and community to avoid placement in a nursing facility or other institution. Many individuals who use Medicaid home and community-based waivers need personal care, respite or companion services to avoid institutional placement. Since 1998, personal care services have been available through both traditional home health care agencies and through consumer-direction. Consumer-direction empowers the individual to recruit, hire, train, supervise and determine the ongoing employment of their personal care attendants. The Virginia model of consumer-direction has grown since 1998 from eight people to 19,562 in 2015. Of the 46,982 individuals who used Medicaid home and community-based waiver services in 2015, 42% used consumer-directed services. In April 2016, there were 23,290 people employed as Medicaid consumer-directed attendants. There are many reasons why individuals choose consumer-direction. One reason is dissatisfaction with traditional agency services that have resulted in negative experiences.
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Relying on agency services has not been adequate for many years and consumer-direction has filled the void to ensure individuals receive the support they need. Many Virginians who live in rural areas are unable to secure agency services and must rely on consumer-direction.
Without adequate consumer-directed personal care services some individuals will be institutionalized, others will put themselves at risk of serious harm by going without needed services, and still others will be forced to rely on upon much less desirable and less effective services. These other services will be more expensive to provide, more difficult to obtain, and they may result in the loss of freedoms that most Virginians take for granted, such as going to community events and being employed.
The federal government has made clear that it is a violation of the ADA to put in place a cap on worker hours without having an exceptions process for people who will be placed at serious risk of institutionalization if the policy is applied to them. Specifically, the U.S. Department of Justice and the Office of Civil Rights in the U.S. Department of Health and Human Services sent a “Dear Colleague” letter to states describing the steps they must take to ensure compliance with the ADA in their implementation of the new home care rules. (Available at https://www.ada.gov/olmstead/documents/doj_hhs_letter.pdf ). It warns states that:
Implementation of across-the-board caps risks violating the ADA if the caps do not account for the needs of individuals with disabilities and consequently places them at serious risk of institutionalization or segregation. For example, if a state prohibits home care workers from exceeding 40 hours a week of work, individuals who need more than 40 hours a week of care may not receive their full hours where home care workers are scarce. And even where home care workers are available, consumers with extraordinary medical or behavioral needs may not be able to tolerate multiple workers in their home. Emergency situations may also arise where a scheduled second worker is not available and the individual’s home care support needs would not be met without immediate authorization of overtime hours and pay.
As described in the letter, we ask that the Commonwealth establish an exceptions process to allow individuals in specific circumstances to hire consumer-directed attendants for more than 40 hours in a work week to avoid being placed at risk of institutionalization. Having an exceptions process could resolve the potential harm that will be caused and ensure the Commonwealth continues to be in compliance with the ADA. We encourage you to look at the exceptions processes being developed by other states, such as Oregon and Massachusetts, as well to as engage with Virginia stakeholders as you develop a process.
We appreciate your commitment to ensuring that people with disabilities can live in the community, and thank you for considering this important step to ensure that right is protected for people receiving consumer-directed attendant services.
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Sincerely,
Gayl Brunk, President
Virginia Association of Centers for Independent Living
3210 Peoples Drive, Suite 220
Harrisonburg, VA 22801
540-433-6513,
Becky Boswell, Executive Director
Autism Society Central Virginia
200 South 3rd Street
Richmond, VA 23219
804-257-019,
Alison Barkoff, Director of Advocacy
Bazelon Center for Mental Health Law
1101 15th St. NW, Suite 1212
Washington, DC 20005
202-747-3668,
Colleen Miller, Executive Director
disAbility Law Center of Virginia
1512 Willow Lawn, Suite 100
Richmond, VA 23230
804-225-2042,
David Broder, President
SEIU Virginia 512
3545 Chain Bridge Road, Suite 106
Fairfax, VA 22030
804-405-0866,
Jamie Liban, Executive Director
The Arc of Virginia
2147 Staples Mill Road
Richmond, VA 23230
804 649-8481,
Karen Tefelski, Executive Director
Virginia Association of Community Rehabilitation Programs, Dba vaACCSES
7420 Fullerton Road, Suite 110
Springfield, VA 22153-2836
804-368-7555,
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Heidi Lawyer, Executive Director
Virginia Board for People with Disabilities
1100 Bank Street, 7th Floor
Richmond, VA 23219
804-786-9369,
Jill Hanken, Health Law Attorney
Kathy Pryor, Elder Law Attorney
Virginia Poverty Law Center
919 East Main Street, Suite 610
Richmond, VA 23219
804-782-9430, ,
cc Dr. Bill Hazel, Secretary of Health and Human Resources
Cindi Jones, Director, Department of Medical Assistance Services
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