NASDDDS, NAMD, NASUAD, NCD Urge Extension of Companionship Rule Implementation Date

The National Association of State Directors of Developmental Disabilities Services (NASDDDS), the National Association of Medicaid Directors (NAMD), The National Association of States United for Aging and Disabilities (NASUAD), and the National Council on Disability (NCD) each recently sent separate letters to the US Department of Labor (DOL) to request an extension of the implementation period for the final rule, “Application of the Fair Labor Standards Act to Domestic Service,” issued October 1, 2013 and given an effective date of January 1, 2015. According to NCD, “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.” In their letter, NAMD expresses concern that the current effective date “fails to provide sufficient time for the federal agencies and state partners to understand the policy and operational issues, develop workable solutions on key components and determine an appropriate course of action.” The letters from NASDDDS, NAMD, and NASUAD request an additional 18 months; NCD’s request does not mention a specific new effective date.

According to NCD, “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.” NAMD argues that “the extension will allow the Labor and Health and Human Services departments to work through and, where appropriate, reevaluate those areas where unforeseen issues have arisen and outstanding questions remain as it pertains to Medicaid.” Further, “an extension will also allow the Administration to continue with more thoughtful discussions with states regarding the unintended impact on certain Medicaid-financed in-home services, particularly for individuals with extensive home care needs.” NASDDDS points out that “states are still anticipating sub-regulatory guidance on the determination of third party employment” that “may have broad policy and financial implications for a state that could require significant adjustments to programs, payment systems, and information technologies.” NASUAD observes that “much of the application of these rules will be determined on a case-by-case basis,” complicating compliance and requiring “significant outreach and education for state administrative staff, providers, and consumers on the new requirements.” The extension, NAMD says, would “allow states to continue to work with the Centers for Medicare and Medicaid Services [CMS] to make adjustments in their programs consistent with Medicaid statute.”

NAMD also notes that “many states are increasingly concerned that the tools and technology to comply with the rule do not exist in some areas and may require a significant investment of resources in other areas,” requiring state legislatures to approve funding. More time, the letter says, “is needed to refine the cost estimates and secure approval for such resources,” and to “procure the vendor contracts and educate staff, providers and Medicaid enrollees about the new tools.”

Any extension of the implementation date would require issuing a new Notice of Proposed Rulemaking (NPRM) or Interim Final Rule. DOL has indicated that the request is “under consideration.”

FMI: The NASDDDS letter is online at https://www.nasddds.org/wp-content/uploads/2021/03/NASDDDS_Dept_of_Labor_5_13_14-1.pdf. The NAMD letter can be read at http://medicaiddirectors.org/sites/medicaiddirectors.org/files/public/namd_ltr_to_dol_flsa_rule_140423.pdf. NASUAD’s letter can be accessed at https://www.nasddds.org/wp-content/uploads/2021/03/051314_DOL_Delay_Request_FINAL-1.pdf. The NCD letter is available at http://www.ncd.gov/publications/2014/05122014/.