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The Ohio Department of Developmental Disabilities (“DODD”) wants to pay less in overtime pay to independent providers across the state. To do this, they have proposed a new administrative rule that would restrict the number of hours these home care workers can work in a work week. This rule was proposed after the federal government made changes under the Fair Labor Standards Act that extended rights to overtime pay and other labor protections to home care workers.

This proposed rule could change things in the whole service system for people with intellectual and developmental disabilities and their families. If you want to express your views on this proposed rule, DODD is holding a public hearing on February 9, 2017, at 10 a.m. You can testify in person or send written comments beforehand. You may also contact your state senators and representatives to voice your opinion.
Below is more information on the proposed rule:

First, what is an independent provider?

An independent provider is a self-employed home care worker who does not work as an employee of an agency provider. An agency provider is a private business or non-profit that has home care workers as employees. A person with intellectual or developmental disabilities who gets Medicaid home and community-based waiver services generally has a right to choose an independent provider or agency provider for services (for example, help with activities of daily living, like getting dressed, preparing meals, eating, bathing, grooming, and taking medication, as well as helping to learn new skills).

What restrictions does the proposed rule contain?

The proposed rule says that once an independent provider has worked 40 hours in a work week providing any Medicaid-funded services (this includes services to people with other types of disabilities, not just people with intellectual and developmental disabilities, and services which are funded through any type of waiver program or through the Medicaid state plan), this worker cannot provide any further services as an independent provider in that same week to a person with intellectual or developmental disabilities through a waiver program unless the person’s service and support administrator gives permission for overtime pay.

When can a person’s SSA authorize an independent provider to work more than forty hours a week?

A person’s SSA can authorize overtime work only for one of these reasons:

  • There is an “emergency,” which the proposed rule says is when an independent provider, agency provider, or family member suddenly is unavailable because of an illness or some other cause;
  • There are not enough available independent providers or agency providers;
  • A person is traveling for vacation or some other reason and it does not make sense for another provider to come along; or
  • A person has specialized needs and requiring other providers would put him or her at risk of being hurt. An example is if a person has an immune system that does not work well, so being around more people means they could get sick. Another example would be an independent provider who is specially trained by a nurse or behavior support specialist to do certain tasks.
How long can an SSA authorize overtime work by an independent provider?

The proposed rule says that an SSA can only allow an independent provider to work overtime on a “time-limited” basis, though the SSA can extend the time period when necessary. Before an SSA can allow overtime because there are not enough independent providers or agency providers, the SSA first has to approve a “time-limited plan” that eventually solves this problem. This plan could mean parents and families will be expected to provide more of the support their loved one needs.

What is a “work week”?

A “work week” lasts seven days, from Sunday at midnight until the following Saturday at 11:59 p.m.

Can I challenge my SSA’s decision to deny overtime work by an independent provide?

It is unclear. The proposed rule says that the Medicaid state hearing process can be used when a person’s services are cut or denied or stopped. However, services usually are not being cut or denied or stopped when an SSA says an independent provider cannot work overtime. The complaint process for county boards of developmental disabilities may be available, but the proposed rule does not mention this.

According to the proposed rule, when will this take effect?

The proposed rule says it will take effect on July 1, 2017.

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