Feds say state home care rule may violate law

Caregivers, clients speak at emotional hearing in Springfield

click to enlarge Tim Summer (left) of Peoria cares for his son, Seaver, who has cerebral palsy. Summer testified at a hearing in Springfield last week against the state’s proposed home care overtime rule. - PHOTO BY PATRICK YEAGLE
Tim Summer (left) of Peoria cares for his son, Seaver, who has cerebral palsy. Summer testified at a hearing in Springfield last week against the state’s proposed home care overtime rule.
Tim Summer of Peoria doesn’t want a vacation from his son.

Summer cares for his 22-year-old son, Seaver, who requires constant supervision because of his severe disabilities. That means Summer doesn’t get a break, but he doesn’t care.

So when the Illinois Department of Human Services told Summer and thousands of other home care workers across Illinois that they could only work 40 hours per week or risk being “defunded,” they revolted. DHS says the intent was to control costs, ensure continued services and make life easier for caregivers.

That was the backdrop for an emotional hearing in Springfield last week, at which several home care workers and people who require living assistance urged the state to reconsider the contentious overtime rule. Meanwhile, the U.S. Department of Labor says Illinois’ rule may violate federal law.

Two state home care programs pay for seniors and people with disabilities to get help with a broad range of daily tasks, enabling them to live at home instead of at an institution. DHS runs the program for people with disabilities.

Many home care workers in Illinois work for a person needing assistance rather than for the state. They’re represented by Service Employees International Union, giving them collective bargaining abilities.

The scuffle began in May, when DHS issued a rule limiting home care workers to 40 hours per week unless overtime was authorized. The state rule was in response to a U.S. Department of Labor rule requiring overtime pay for home care workers. Some workers who continued working more than 40 hours per week received disciplinary notices saying they risked being “defunded” by DHS, which would amount to kicking them out of the program.

DHS rescinded the rule after a Kane County judge found it hadn’t been adopted through the state’s formal administrative rule process, and the agency later proposed the rule through that process. DHS held the hearing in Springfield on Oct. 6 to accept public comments on the proposal. In the meantime, SEIU has filed a complaint alleging unfair labor practices with the Illinois Labor Relations Board.

Andre Sikes, a home care worker of about nine years, told DHS at the hearing last week that he couldn’t just leave his client, who has severe disabilities, after 40 hours.

“I’m not going to leave him sitting at home in poop, dirty, just because of a budget,” Sikes said, referring to the state’s lack of a full spending plan for the second fiscal year in a row.

Vivian Anderson, bureau chief for the Home Services Program at DHS, attended the hearing in Springfield. She says the idea behind the rule was that clients would hire additional caregivers instead of having one caregiver work into overtime. She says all clients would continue to get the same number of service hours as before, but hiring the additional workers would cut overtime costs and allow DHS to keep funding the program despite the state budget crisis. DHS saved about $4.8 million in overtime costs between January and July, before the rule was rescinded.

Some clients in the program say they’re concerned about finding additional caregivers whom they can trust. DHS surveyed home care agencies in July to find out whether there were enough caregivers to meet demand. Most agencies said they had no trouble finding and hiring staff. Anderson notes that some rural areas do have worker shortages, but she has authorized overtime in such cases.

The exception process is another flash point in the home care battle. Workers say the process to obtain an exception for overtime is too cumbersome, and the parameters are too narrow. That’s partly why the U.S. Department of Labor sent DHS a letter late last month saying the state’s rule may violate the federal Fair Labor Standards Act.

“Inflexible state caps on home care providers’ hours can also have the effect of encouraging those employees to work ‘off the clock,’ to work more hours than they are permitted to report, because they are unwilling to abandon consumers who need assistance but are unable to find additional attendants,” wrote Laura Fortman, deputy administrator of DOL’s Wage and Hour Division.

Anderson says limiting overtime allows caregivers to take time off because the additional workers would fill in. However, she says her agency is open to reconsidering the details of the rule as part of the process.

“Our customers are the reason we’re here,” Anderson said. “We care about them, and we care about this program. When we draft a policy, it’s with them in mind.”

Contact Patrick Yeagle at pyeagle@illinoistimes.com.

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